Delhi District Court
Cbi vs . (I) Sh. Vinay Kumar Jain (A1) on 7 June, 2016
1
IN THE COURT OF SH. SANJEEV AGGARWAL SPECIAL
JUDGE CBI03 (PC ACT) DELHI
CC No.06/15 RC No. 7(A)/1994
CBI/SIUVIII/ND
U/s : 120B r/w S
418/420/468/471,477(A) IPC
and Section 5(2) r/w 5(1)(d) of
PC Act, 1947 and Section
13(2)r/w 13(1)(d) of PC Act
1988 and Substantive
offences U/s
418/420/468/471,477(A) IPC
and Sec. 5(2) r/w S 5(1)(d) of
PC Act, 1947 and Section
13(2) r/w 13(1)(d) of PC Act,
1988
CBI Vs. (i) Sh. Vinay Kumar Jain (A1)
S/o Late Sh. T.C.Jain, Ex.Branch
Manager, Bank of Maharashtra, Dr.
Mukherjee Nagar Branch, Delhi, R/o
A74, Ram Prashta, Ghaziabad UP(Public
Servant)
(ii) Sh. Dalip Kumar Gupta(A2)
(proclaimed offender)
S/o Late Sh. Hansraj Gupta
R/o 496/A, Bhola Nath Nagar,
Shahdara, Delhi32(Private person
CC No. 06/15
CBI Vs. Vinay Kr. Jain & Ors 1 of 176
2
and partner in M/s P.D.Enterprises, M/s
Strip India
(iii) Sh. Gulshan Kumar Gupta (A3)
(proclaimed offender)
S/o Late Sh. Hansraj Gupta,
R/o 496/A,Bhola Nath Nagar,
Shahdara(Private person and Proprietor
of M/s G.K.Electronics)
(iv) Sh. Praveen Kumar Gupta(A4)
S/o Late Sh. Hansraj Gupta,
R/o 496/A, Bhola Nath Nagar,
Shahdara, Delhi32((Private and
Proprietor of M/s Pragati Conductors
and Partner in M/s Kamal Enterprises)
(v) Sh. Devender Kumar Gupta(A5)
(proclaimed offender)
S/o Late Sh. Hansraj Gupta
R/o 496/A, Bhola Nath Nagar, Shahdara
Delhi32(private person and partner in
M/s G.K.Industrial Corporation and M/s
Uma Super Insulation)
(vi) M/s Uma Super Insulation,
Bhola Nath Nagar,
Shahdara, Delhi32(through A5)
(vii) M/s Kamal Enterprises,
CC No. 06/15
CBI Vs. Vinay Kr. Jain & Ors 2 of 176
3
Bhola Nath Nagar,
Shahdara, Delhi32(through A4)
(viii) M/s Mohit Enterprises,
Bhola Nath Nagar,
Shahdara, Delhi32(through A3)
(ix) M/s P.D. Enterprises,
Bhola Nath Nagar,
Shahdara, Delhi32(through A2)
(x) M/s Strip India,
Bhola Nath Nagar,
Shahdara, Delhi32(through A2)
(xi) M/s G.K.Industrial Corporation,
Bhola Nath Nagar,
Shahdara, Delhi32(through A2)
Date of Institution : 04.12.1998
Judgment Reserved : 16.05.2016
Judgment Delivered : 03.06.2016
J U D G M E N T
1. In brief the prosecution story is that the case RC 7(A)/94 was registered on 23.08.94 on a written complaint by Sh. R.B.Rane, DGM, Bank of Maharashtra, Northern Zone, Ajmal Khan Road, New CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 3 of 176 4 Delhi U/s 120B r/w Sec 204, 468, 471 of IPC & Section 5(1)(d) of PC Act, 1947 and Sec. 13(1)(d) of PC Act, 1947 and Sec.13(1)(d) of PC Act, 1988 and Substantive offences UI/s 420, Sec. 204, 468, 471, 477A of IPC & Sec. 5(1)(d) of PC Act, 1947 and Sec. 13(1)(d) of PC Act, 1988, with the allegations that Sh. V.K.Jain(A1) while working as Branch Manager, Dr. Mukherjee Nagar Branch, New Delhi, Bank of Maharashtra during May 1986 to September, 1991 entered into criminal conspiracy with S/Sh. Dalip Kumar Gupta(A2), Gulshan Kumar Gupta(A3) Parveen Kumar Gupta(A4) and Devender Kumar Gupta(A5) and in furtherance of said criminal conspiracy Sh. V.K.Jain(A1), fraudulently, unauthorizedly, without adhering to prescribed procedure of the bank and by abusing his official position as public servant allowed them to enjoy bank funds to the tune of Rs. 20 crores without sanction and cost, by way of debiting cheques drawn by them, against office accounts of the bank i.e CHR/LBRC and Central office reconciliation account. CC No. 06/15
CBI Vs. Vinay Kr. Jain & Ors 4 of 176 5
2. According to the FIR, in total, 384 cheques were passed for payment by Sh. V.K.Jain(A1) without debiting the amounts against their account. Instead, Sh. Jain debited the office accounts namely, CHR account or local branch reconciliation account. Total amount involved, according to the FIR was to the tune of Rs. 20 crores.
3. Keeping in view the volume of work involved into investigation of all these 384 instances, the investigation was restricted to sample checking. 25 instances involving amount of Rs. 89,53,867/ could be covered during investigation. The criteria for sampling which was adopted was the availability of relevant documents i.e the cheques in original, RBI schedules, cash book entries, statement of account of parties and the relevant vouchers.
4. The investigation into these 25 instances has revealed that the cheques were cleared/paid by the bank without debiting the concerned parties accounts maintained by the bank. Instead, the amount was debited to CHR account which was a nominal account. CC No. 06/15
CBI Vs. Vinay Kr. Jain & Ors 5 of 176 6 The investigation also has revealed that on the date when these cheques were passed(the date of debiting the CHR account), the balance available in the parties accounts were insufficient for passing the payment. Later on, after a period ranging from one day to 138 days(depending on the availability of funds in the parties account), the parties account was debited and the CHR account would be given the credit to make the adjustment complete. It clearly shows the conspiracy between Sh. V.K.Jain(A1) with Accused no. 2 to Accused No. 5 whereby he allowed the bank funds o these parties causing interest loss to the bank. On account of these 25 instances, the interest loss to the bank, as worked out during investigation by Sh. Pahuja, comes to the tune of Rs. 1,86,953/
5. Investigations disclosed that on 12.04.89. Sh. Praveen Kumar Gupta(A4) Proprietor of M/s Pragati Conductors vide Account No. 633 issued cheque No. 401984 for Rs. 5 lacs and cheque No. 401985 for Rs. 2.5 lacs in favour of M/s Paper Conductors. These two cheques were presented by Bank of India, Bahadur CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 6 of 176 7 Shah Zafar Marg, Delhi through clearing on 13.04.89 for payment and the same were paid by Bank of Maharashtra, Dr. Mukherjee Nagar Branch, Delhi. Both these cheques were passed for payment fraudulently and dishonestly by Sh. V.K.Jain(A1) and abused his official position as public servant to give pecuniary advantage to Accused No. 4, while account of M/s Pragati Conductors vide Account No. 633 was having a meagre balance of Rs. 1516 on 13.04.89.
6. Similarly, Sh. Dalip Kumar Gupta(A2), Managing Partner of M/s Strip India vide Account No. 5085 issued a cheque No. 399905 dated 12.04.89 for Rs. 7,50,000/ in favour of M/s Kansal Metal. This cheque was also presented by Bank of India, Bahadur Shah Zafar Marg for payment and the same was paid on 13.04.89. On this date the current account No. 5085 of M/s Strip India was maintaining a debit balance(no credit balance) of Rs. 97,670/. The above three cheques issued by Sh. Praveen Kumar Gupta(A4) and Sh. Dalip Kumar Gupta(A2) were passed by Sh. V.K.Jain(A1) for payment by debiting the CHR CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 7 of 176 8 account of the branch. Subsequently on 27.06.89, in the event of availability of funds in these two accounts namely M/s Pragati Conductors and M/s Strip India, the funds were transferred to the CHR account and debit entries were adjusted by Sh. V.K.Jain(A1) and thereby causing interest loss of Rs. 61,643/ on A/c of fraudulent passing and payment of these three cheques.
7. Investigations also disclosed that on 16.06.89, Sh.
Praveen Kumar Gupta(A4) Proprietor of M/s Pragati Conductors vide Account No. 633, issued a cheque No. 286913 for Rs. 7,50,000/ in favour of M/s Hindustan Metal Industries. This cheque was presented to Bank of Maharashtra, Dr. Mukherjee Nagar Branch, Delhi through clearing for payment by Bank of India, Mayur Vihar Branch, Delhi on 19.06.89 and the same was fraudulently passed for payment by Sh. V.K.Jain(A1) and paid on 20.06.89 while the current account of M/s Pragati Conductors was having a balance of Rs. 1,21,516/ only. Similarly, on 16.06.89 itself Sh. Praveen Kumar Gupta(A4), Partner in M/s CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 8 of 176 9 Kamal Enterprises vide account No. 802 issued cheque No. 401358 for Rs. 4,50,000/ in favour of M/s Hindustan Metal Industries and another cheque No. 401359 for Rs. 3,00,000/ in favour of M/s Shakti Metal. These two cheques were presented to Bank of Maharashtra, Dr. Mukherjee Nagar Branch, Delhi through clearing by Bank of India, Mayur Vihar Branch, Delhi for payment and the same was fraudulently passed by Sh. V.K.Jain(A1) and paid on 20.06.89.
8. Investigations have also disclosed that the above three cheques issued by Sh. Praveen Kumar Gupta(A4) were passed for payment by V.K.Jain(A1) by fraudulently debiting the CHR account of the branch whereas on 20.06.89, the accounts of M/s Pragati Conductors and M/s Kamal Enterprises were maintaining in sufficient balance. Subsequently on 23.06.89 in the event of availability of funds in these two accounts, the debit entries to CHR were adjusted by Sh. V.K.Jain(A1) b y transfer of funds from these two current accounts M/s Pragati Conductors and M/s Kamal Enterprises. Debit and credit vouchers and CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 9 of 176 10 entries in day books on these dates are in the handwritings of Sh. V.K.Jain(A1). Thus, the bank was put to an interest loss of Rs. 2466/ on account of fraudulent passing and payment of above three cheques by Sh. V.K.Jain(A1) by abusing his official position as Manager of Bank of Maharashtra, Dr. Mukherjee Nagar Branch, Delhi.
9. Investigations further disclosed that Sh. Dalip Kumar Gupta(A2), on 27.6.87, isued cheque no. 142583 for Rs, 2,50,000/ in favor of M/s Om Sons Wire Industries and Cheque No. 142585 for Rs. 1,50,000/ in favour of M/s Shakti Cables. These three cheques Sh. Dalip Kumar Gupta(A2) issued from the current account no. 712 of M/s P.D.Enterprises, signing as partner in this firm. Similarly, Sh. Devender Kumar Gupta(A5) partner in M/s Uma Super Insulation issued another cheque No. 251166 dated 28.06.87 for Rs. 2,00,000/ in favour of M/s P.D.Enterprises vide account No. 712 were presented in clearing by UCO Bank, New Subzi Mandi Branch, Delhi and State Bank of Bikaner & Jaipur, Delhi for payment on 01.07.87 and the sme CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 10 of 176 11 was fraudulently passed and paid on 01.07.87 while the account of M/s P.D.Enterprises vide account No. 712 was having a debit balance(not credit balance) of Rs. 1,93,783/ on that day. But Sh. V.K.Jain(A1) fraudulently and dishonestly passed these payments by debiting the CHR head account of the branch and subsequently on 31.07.87, in the event of availability of funds in this account, the debit entries to CHR head were adjusted. The cheque No. 251166 for Rs. 2,00,000/ issued from the account of M/s Uma Super Insulation when presented for payment by Canara Bank, Vivek Vihar, Delhi through clearing, was fraudulently passed by Sh. V.K.Jain(A1) and paid on 01.07.87 by debiting the CHR head of the branch while the current account of M/s Uma Super Insulation on that that was having a debit balance(not credit balance) of Rs. 88,929. It was on 31.07.87, in the event of availability of funds in this account, the debit entry to CHR head was adjusted through transfer of funds. However, Bank of Maharashtra, Dr. Mukherjee Nagar Branch incurred a total interest loss of Rs. CC No. 06/15
CBI Vs. Vinay Kr. Jain & Ors 11 of 176 12 13,973/ on account of fraudulent passing and payment of above four cheques issued from the accounts of M/s P.D.Enterprises(A9) and M/s Uma Super Insulation(A6).
10.Investigations further disclosed that Sh. Gulshan Kumar Gupta(A3) Proprietor of M/s G.K.Electronics, issued cheque No. 135378 dated 18.06.87 for Rs. 2,00,000/ in favour of M/s Sanjeev Metal Udyog, cheque No. 135379 dated 19.06.87 for Rs. 2,25,000/ in favour of S.K.Metal Co. and cheque No. 135381 dated 19.06.87 for Rs. 1,25,000/ in favour of M/s Star Aluminium. These three cheques when presented to Bank of Maharashtra, Dr. Mukherjee Nagar Branch, Delhi through clearing for payment on 20.06.87, the current account of M/s G.K.Electronics vide account No. 559 was having only a marginal balance of Rs. 19,127/ but Sh. V.K.Jain(A1) fraudulently and dishonestly passed these three cheques for payment by debiting the CHR Head of the branch and subsequently in the event of availability of funds in this account on 28.06.87, the above credit entries to CHR CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 12 of 176 13 head were adjusted through transfer of funds from this account. However, Bank of Maharashtra, Dr. Mukherjee Nagar Branch, Delhi incurred interest loss of Rs. 2410 on account of fraudulent passing and payment of these three cheques drawn on account of M/s G.K.Electronics.
11.Investigations also disclosed that on 17.07.87, Sh.
Gulshan Kumar Gupta(A3) issued a cheque No. 135397 for Rs. 6,17,303,25 from the current account of M/s G.K.Electronics at Bank of Maharashtra, Dr. Mukherjee Nagar Branch, Delhi, in favour of M/s Om Sons Wire Industry. The said cheque was presented through clearing by State Bank of Bikaner and Jaipur, Delhi for payment and the same was passed for payment by Sh. V.K.Jain(A1) on 18.07.87 by fraudulently debiting CHR Head of the branch. On that date the current account of M/s G.K.ELectronics vide account No. 559 was having a debit balance(not credit balance) of Rs. 2,24,752/ even then the cheque for Rs. 6,17,303.25 was passed by Sh. V.K.Jain(A1) unauthorizedly and fraudulently. On 25.07.87 in the CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 13 of 176 14 event of availability of funds in the account of M/s G.K.Electronics, the aforesaid debit entry to CHR Head was adjusted by transfer of funds. However, the bank suffered interest loss of Rs. 2368/ due to misuse of official position by Sh. V.K.Jain(A1) as Manager of Bank of Maharashtra, Dr. Mukherjee Nagar Branch, Delhi.
12. Investigations further disclosed that on 30.01.87, Sh.
Gulshan Kumar Gupta(A3) Proprietor of M/s G.K.Electronics issued a cheque no. 144996 for Rs. 6,80,064/ in favour of MMTC India Ltd. The said cheque was presented through clearing by State Bank of India, Rajender Place, New Delhi for payment on 10.02.87 and the same was paid by Sh. V.K.Jain(A1) by fraudulently debiting the CHR Head of the branch. On that day the current account of M/s G.K.Electronics vide account No. 559 was having a nominal balance of Rs. 17,070/ event then the said cheque was fraudulently passed for payment by Sh. V.K.Jain(A1) to give benefit to the accused firm. Subsequently on 28.06.87 in the event of availability of funds in the CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 14 of 176 15 account of M/s G.K.Electronics, the debit entry to CHR head was adjusted through transfer of funds from the current account of M/s G.K.Electronics. However, the Bank was put to an interest loss of Rs. 51,424/ due to abuse of official position by Sh. V.K.Jain(A1).
13.Investigation also further disclosed that on 11.06.87, Sh. Dalip Kumar Gupta(A2) Partner in M/s P.D.Enterprises vide current account No. 712, issued a cheque for Rs. 3,80,000/ in favour of M/s Super Industries. The said cheque was presented by Canara Bank, Vivek Vihar Branch, Delhi through clearing for payment and the same was passed and paid on 12.06.87 by Sh. V.K.Jain(A1) fraudulently by debiting CHR Head of the Branch. On that day the current account of M/s P.D.Enterprises was having a debit balance(not credit balance) of Rs. 2,04,672/, even then the cheque of this party was passed for payment by Sh. V.K.Jain(A1). Subsequently, on 27.06.87 in the event of availability of funds in the current account of M/s P.D.Enterprises, the aforesaid debit entry to CHR was adjusted through transfer of funds from the CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 15 of 176 16 aforesaid current account. However, the Bank incurred interest loss of Rs. 2924/ due to abuse of official position by Sh. V.K.Jain(A1) as Manager of Bank of Maharashtra, Dr. Mukherjee Nagar Branch, Delhi.
14.Investigations further disclosed that on 02.02.88, Sh.
Devender Kumar Gupta(A5) partner in M/s G.K.Industrial Corporation(A11) issued a cheque No. 266471 for Rs. 4,75,000/ in favour of M/s Om Sons Wire Industries. The said cheque was presented through clearing for payment by Andhra Bank, Vishwas Nagar Branch, Delhi and the same was passed for payment on 04.02.88 by Sh. V.K.Jain(A1) by fraudulently debiting the CHR head of the branch. On that day the current account of M/s G.K.Industrial Corporation(A11) vide account No. 786 was having a nominal balance of Rs. 29,639/. Subsequently on 30.03.88, in the event of availability of funds in the account of M/s G.K.Indl.Corp.(A11) the debit entry to CHR head was adjusted by transfer of funds from the account of M/s G.K.Indl.Corp(A11).
15. Similarly, on 02.02.88, Sh. Praveen Kumar CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 16 of 176 17 Gupta(A4), partner in M/s Kamal Enterprises(A7) issued a cheque no. 266431 for Rs. 4,25,000/ in favour of M/s Universal Machine. The said cheque was presented through clearing by Andhra Bank, Vishwas Nagar, Delhi, for payment and the same was passed for payment by Sh. V.K.Jain(A1) by fraudulently debiting CHR head of the branch. On that day, the current account No. 802 of M/s Kamal Enterprises(A7) was having a debit balance(not credit balance) of Rs. 1,37,283/, even then Sh. V.K.Jain(A1) fraudulently and dishonestly passed the aforesaid cheque for Rs. 4,25,000/ for payment. The aforesaid debit entry to CHR head of the branch was adjusted on 30.03.88 by transfer of funds from the current account of M/s Kamal Enterprises(A7) vide account No. 802. However, the bank was put to total interest loss of Rs. 26,630/ on account of fraudulent passing of these two cheques by debit to CHR account of the branch.
16.Investigations have also disclosed that on 29.02.88, Sh. Gulshan Kumar(A3) Prop., of M/s G.K.Electronics vide account No. 559, issued a cheque No. 399011 for CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 17 of 176 18 Rs. 2,50,000/ in favour of M/s Om Sons Wire Industries. The said cheque was presented by Andhra Bank, Vishwas Nagar Branch, Delhi through clearing for payment and the same was paid by Sh. V.K.Jain(A1) on 05.03.88 by fraudulently debiting CHR Head of the branch. On that day the current account of M/s G.K.Electronics vide account No. 559 was having a nominal balance of Rs. 2485/, even then the said cheque for Rs. 2,50,000/ was passed and paid by Sh. V.K.Jain(A1). Subsequently, on 30.03.88 in the event of availability of funds in the current account of M/s G.K.Electronics, the said debit entry to CHR Head was adjusted by transfer of funds from the current account No. 559 of M/s G.K.Electronics. Similarly, on 29.02.88 Sh. Praveen Kumar Gupta(A4), Prop., of M/s Pragati Conductors vide account No. 633 issued a cheque No. 397647 for Rs. 2,40,000/ in favour of M/s Universal Machine. The said cheque was presented through clearing for payment by Andhra Bank, Viswas Nagar Branch, Delhi and the same was passed for payment by Sh. V.K.Jain(A1) on 05.03.88 CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 18 of 176 19 by fraudulently debiting CHR Head of the branch. On that day the current account of M/s Pragati Conductors vide account No. 633 was having a nominal balance of Rs. 1475/ even then Sh. V.K.Jain(A1) fraudulently and dishonestly passed and paid the cheque for Rs. 2,40,000/.
17.Subsequently, on 30.03.88, in the event of availability of funds in the current account of M/s Pragati Conductors, the debit entry to CHR Head was adjusted by Sh. V.K.Jain(A1) illegally by transfer of funds from the current account No. 633 of M/s Pragati Conductors. In the same manner on 28.02.88, Sh. Praveen Kumar Gupta(A4), partner in M/s Kamal Enterprises(A7), issued the cheque No. 266442 for Rs. 5,10,000/ in favour of M/s Om Sons Wire Industries. The said cheque was presented through clearing for payment by Andhra Bank, Viswas Nagar Branch, Delhi and the same was passed for payment by Sh. V.K.Jain on 05.03.88 by fraudulently debiting CHR Head of the branch. On that day the current account No. 802 of M/s Kamal Enterprises was having CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 19 of 176 20 a nominal balance of Rs. 771/, even then the cheque for Rs. 5,10,000/ was passed by Sh. V.K.Jain(A1). Subsequently, on 30.03.88 in the event of availability of funds in the current account No. 802 of M/s Kamal Enterprises, the debit entry to CHR head was adjusted through transfer of funds from the current account of M/s Kamal Enterprises.
18.Investigations have also disclosed that on 29.02.88, Sh. Gulshan Kumar Gupta(A3) of M/s Mohit Enterprises(A8) vide account No. 803, issued a cheque No. 265999 for Rs. 2,49,500/ in favour of M/s Om Sons Wire Industry. The said cheque was presented through clearing for payment by Andhra Bank, Viswas Nagar Branch, Delhi and the same was passed for payment by Sh. V.K.Jain(A1) on 05.03.88 by fraudulently debiting the CHR head of the branch. On that day the current account of M/s Mohit Enterprises was having insufficient balance of Rs. 35,458/ , even then the said cheque for Rs. 2,49,500/ was passed by Sh. V.K.Jain unauthorizedly and by abusing his official position. Subsequently in the event CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 20 of 176 21 of availability of funds in the current account of M/s Mohit Enteprises, the debit entry to the CHR head was adjusted through transfer of funds from the current account of M/s Mohit Enterprises. However, the bank incurred interest loss of Rs. 17,116/ on account of fraudulent passing of above four cheques on 05.03.88.
19.Investigations have further revealed that on 02.03.88 Sh. Praveen Kumar Gupta(A4), the partner in M/s Kamal Enterprises(A7) vide account No. 802 issued a cheque No. 266443 in favour of M/s Om Sons Wire Industries. The said cheque was presented through clearing for payment by State Bank of Bikaner & Jaipur, Delhi and the same was passed and paid by Sh. V.K.Jain(A1) unauthorizedly, by fraudulently debiting CHR head of the Branch. On that day the current account of M/s Kamal Enterprises(A7) vide account No. 802 was having a nominal balance of Rs. 771/, even then the said cheque was paid by Sh. V.K.Jain on 09.03.88. Subsequently, in the event of availability of funds in the current account of M/s Kamal Enterprises, the debit entry in the CHR head CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 21 of 176 22 was adjusted on 30.03.88 by transfer of fund from the current account of M/s Kamal Enterprises. However, the bank was put to interest loss of Rs. 2301/ on account of this fraudulent payment and misuse of official position by Sh. V.K.Jain(A1).
20.Investigations have also disclosed that on 23.03.88 Sh. Gulshan Kumar Gupta(A3), Prop., of M/s G.K.Electronics issued a cheque No. 399023 for Rs. 1,60,000/ in favour of Bharat Aluminium Company. The said cheque was presented through clearing for payment and the same was passed and paid on 29.03.88 by Sh. V.K.Jain(A1) by fraudulently debiting CHR head of the Branch. On that day the current account of M/s G.K.Electronics vide account No. 559 was having the balance of Rs. 34,999/ , even then the cheque was passed for payment. Subsequently, on 30.03.88, in the event of funds in the account of M/s G.K.Electronics, the debit entry to CHR head was adjusted. However, the bank incurred interest loss of Rs. 871/ on the said fraudulent payment.
21.Investigations have further revealed that on 27.02.88, CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 22 of 176 23 Smt. Urmila Devi, partner in M/s G.K.Industrial Corporation(A11) issued a cheque No. 266481 for Rs. 3,67,000/. The said cheque was presented through clearing Allahabad Bank, Dariya Ganj Branch, Delhi for payment band the same was passed and paid by Sh. V.K.Jain(A1) on 01.03.88 by fraudulently debiting CHR head of the branch. On that day the current account of M/s G.K.Industrial Corporation(A11) vide account No. 786 having a nominal balance of Rs. 436/ only, even then the cheque for Rs. 3,67,000/ was passed for payment. The said entry in the CHR head was subsequently adjusted by Sh. V.K.Jain(A1) on 19.03.88 by transfer of fund from the current account of M/s G.K.Industrial Corporation(A11). However, the bank incurred interest loss of Rs. 3620/ due to abuse of official position by Sh. V.K.Jain(A1) as Manager of Bank of Maharashtra, Dr. Mukherjee Nagar Branch, Delhi. Thus the total loss caused to the bank was Rs. 1,86,953/.
22.The aforesaid acts disclosed commission of offences by U/s 120B IPC R/w Sec 418, 420, 468, 471, 477(A) CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 23 of 176 24 IPC and Sec. 5(2) r/w 5(1)(d) of PC Act, 1947 and Sec. 13(2) r/w 13(1)(d) of PC Act, 1988 and Substantive offences U/s 418, 420, 468, 471, 477(A) IPC and Sec. 5(2) r/w 5(1)(d) of PC Act, 1947 and Sec. 13(2) r/w 13(1)(d) of PC Act, 1988 against Sh. V.K.Jain(A1), Dalip Kumar Gupta(A2), Gulshan Kumar Gupta(A3), Praveen Kumar Gupta(A4), and Devender Kumar Gupta(A5), M/s Uma Super Insulation(A6), M/s Kamal Enterprises(A7), M/s Mohit Enterprises(A8), M/s P.D.Enterprises(A9), M/s Strip India(A10) and M/s G.K.Indl. Corp (A11).
23.During the course of investigations, it was found that no clearing cheques issued from the account of M/s Jesica Exports, M/s Diamond Cables and conductors, M/s Nitin Wire Industries and M/s Chaitanya Powerlines Pvt., Ltd., were passed for payment fraudulently and without debiting their respective accounts.
24. After completion of investigations, above chargesheet was filed in the court on 04.12.1998. Thereafter, cognizance was taken of the offences vide order dated CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 24 of 176 25 27.02.1999 by Ld. Special Judge. The charge(s) against the accused Praveen Kumar Gupta (A4) was ordered to be framed under section 120 B IPC r/w 418,420,467,468,471 IPC and section 13(2) r/w 13 (1)
(d) PC Act vide order dated 21.10.2005, however, formal charges were framed as above on 07.12.2005.
25. Thereafter, the matter was fixed for prosecution evidence as other accused persons were proclaimed offenders. Later on, the other accused Vinay Kumar Jain(A1) also appeared and after hearing arguments on charge the same were disposed of vide detailed order dated 02.01.2012, whereby it was held that prima facie case u/s 120B IPC r/w 418,420,467,468,471,477(A) IPC and substantive offences thereof and under section 5 (1)(d) r/w 5(2) of P.C. Act 1947 and corresponding section 13(2) r/w 13(1)(d) of P.C. Act, 1988 was made out against the accused V.K. Jain(A1)
26. Both the accused persons pleaded not guilty against the said charges and claimed trial.
27.Thereafter, prosecution examined nine witnesses in CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 25 of 176 26 support of its case. PW1 is Sh. R.K. Pahuja, Senior Bank Manager, Bank of Maharashtra, Regional Office, Karol Bagh Delhi who has deposed regarding the procedure of operation of Clearing House/clearing house system, as also the procedure of operation of local branch reconciliation. As regard the procedure for operation of clearing house/clearing house system is concerned, the payment of cheques of various local banks is exchanged/cleared/collected through centralized clearing house system operated by Reserve Bank of India. Under this system cheque deposited at collecting bank are sent to Reserve Bank of India through service branch of the respective bank. The cheques are sorted bank wise and branch wise at clearing house and are lodged with respective paying branches next day for payment. At paying branch if there is sufficient balance in the account of the party and the negotiable instrument is not otherwise invalid, then the paying branch clears the cheque after debiting the account of issuing party. CC No. 06/15
CBI Vs. Vinay Kr. Jain & Ors 26 of 176 27 In case of insufficient balance the cheque is returned on the same day by the paying branch to the collecting branch through clearing house. If cheque is not returned by the paying branch to clearing house on the same day, the cheque can be returned on the counter on the next day before commencement of the business hours and if the cheque is not returned as mentioned above, it is deemed to have been cleared/paid and the collecting bank credits the amount of the cheque in the account of the party presenting the cheque and allows the withdrawal to the party.
28.In respect of operation of general ledger (G/I), nominal account, clearing house receivable(CHR) is concerned, if there is no sufficient balance in the account in which cheque is presented for payment, bank debits to office account G/I CHR while returning the cheque. On receipt of the suitable claim from the collecting bank who has already received the money through clearing house while presenting the cheque, the G/I. CHR account is adjusted next day. In case of CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 27 of 176 28 counter returns the money is received from the collecting bank directly by pay order which may take maximum 7 days. He has also proved the signatures on various cheques pertaining to the present case and had also identified the signatures on the said cheques of accused no. 1 V.K. Jain and he also deposed regarding the passing of various cheques of different customers under authority of A1 despite the customers having no balance in their respective accounts from which the said cheques had been drawn and had been presented by other party for collection to their bank.
29. PW2 is Sh. N.M. Lokhande, Senior Manager, Bank of Maharashtra, Regional Office, Delhi. The said witness has also stated that he had worked with A1 and could identify his handwriting and signatures. He has explained the procedure of clearing house receivable account (CHR) and stated that CHR Account is Clearing House Receivable Account maintained at a Branch for adjustment of Inward/Outward clearing sent from Branch. This is an office account and no CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 28 of 176 29 entry pertaining to any customer account is made in this account. This account is not be used for debiting any cheque received in the branch for clearing. The cheques are debited to the respective account holder's account in their account. In case of insufficient balance the cheque presented in clearing is returned back to the Presenting Bank with a reason memo stating the drawer does not have the sufficient fund to honour the cheque in the account. Under no circumstances, cheque is passed by debiting this office account i.e. CHR Account. He has also deposed that several cheques of various parties, some of whom are accused in the present drawn and presented for payment through clearing house despite there being no balance in the said account, the said cheques were still passed without debiting the respective account of the parties on that particular date. However, on the same date, this amount had been debited in the CHR account by preparation of voucher by A1. Subsequently, the account of the parties were debited either by transfer of funds from the respective CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 29 of 176 30 parties' account and later on crediting the CHR Account and in this manner the Bank of Maharashtra have to suffer loss of interest as the said entries were done without any consideration by A1.
30.He has also proved one of the debit voucher dated 13.04.1989 which is Ex. PW2/O4. He has also stated that three cheques were not debited, the number of which he has given in his deposition on 13.04.1989, however, on the same date, this amount had been debited in the CHR account by altering the original figure from 25,06,718.32 to 40,06,718.32.
31. PW3 is Sh. Anil Kumar Singh who was posted as Branch Manager from 1993 to 1996 at Bank of Maharashtra, Dr. Mukherjee Nagar Branch, Delhi who had also worked with A1 at Bhopal Branch of Bank of Maharashtra. He has proved various account opening forms namely Account no. CA 789 in the name of Dilip Kumar R/o Bhola Nath Nagar, Shahdara, Delhi , CA816 in the name of G.K. Electronics through Proprietor Gulshan Kumar Gupta and current account in the name of Yati Chit Fund and Finance Company Pvt. Ltd. he CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 30 of 176 31 has identified his initials on the said account opening forms which are Ex. PW7/A to PW7/C.
32.He has further deposed that account opening form pertaining to No. CA633 in the name of M/s. Pragati Conductors, IV/1713, Bhola Nath Nagar, Shahdara, Delhi through it proprietor Sh. Praveen Kumar Gupta, CA713 in the name of M/s. P.D. Enterprises R/o 4, Bhola Nath Nagar, Delhi through partners Dalip Kumar Gupta and Mrs. Radha Gupta, CA No. 802 in the name of M/s Kamal Enterprises R/o 6, Bhola Nath Nagar, Shahdara, Delhi through Partners Praveen Kumar Gupta and Mrs. Kamal Gupta, CA 803 in the name of M/s. Mohit Enterprises R/o 5, Bhola Nath Nagar, Shahdara, Delhi through partners Gulshan Kumar Gupta and Hansraj Gupta and CA 1009 in the name of Diamond Cables and Conductors Pvt. Ltd. R/o 13, Bhola Nath Nagar, Delhi through partners Gulshan Kumar Gupta and Meenu Gupta. All the aforesaid accounts have been allowed to be opened by accused V.K. Jain. He also identified his initials on the aforesaid account opening forms at point Q163, Q165, Q166, Q167 and Q168. Account CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 31 of 176 32 opening forms are Ex. PW7/E, Ex. PW7/F, Ex. PW7/G, Ex. PW7/H and Ex.PW7/J (In CC no. 88/1/06) which belong to Bank of Maharashtra at Dr. Mukherjee Nagar Branch.
33. PW4 is Sh. R.K. Khurana , Branch Manager, Bank of Maharashtra, Asaf Ali Road Branch, New Delhi. He has deposed that during period July, 1996 to August, 1999, he was posted as Branch Manager, Bank of Maharashtra, Dr. Mukherjee Nagar Branch, Delhi. He has proved statement of accounts of various entities concerned with the present case for instance he has deposed after seeing the statement of account pertaining to Current A/c No. 576 in the name of Uma Super Insulation running in 19 sheets (In CC no. 88/01/06), that each page bear his attesting signatures at point A and the statement was duly certified under the Banker's Book of Evidence Act, which is Ex. PW8/A (In CC No. 05/15).
34.After seeing statement of account pertaining to Current Account no. 803, in the name of Mohit Enterprises running in 36 sheets, witness deposed that each page CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 32 of 176 33 bear his attesting signatures at point A and the statement was duly certified under the Bankers' Book of Evidence Act, which is Ex. PW8/B (In CC No. 05/15).
35. After seeing the statement of account pertaining to Current account no. 559 in the name of M/s. G.K. Electronics running in 65 sheets, witness deposed that each page bear his attesting signatures at point A and the statement was certified under the Bankers' Book of Evidence Act , which is Ex. PW8/C(In CC no. 05/15).
36. After seeing statement of account pertaining to Current account no. 1009 in the name of M/s. Diamond Cables and Conductors Company running in 16 sheets, witness deposed that each page bear his attesting signatures at point A and the statement was duly certified under the Bankers' Book of Evidence Act, which is Ex. PW8/D (In CC no. 05/15).
37. After seeing statement of account pertaining to Current account no. 786 in the name of M/s. G.K. Industrial Corporation running in 30 sheets, witness deposed that each page bear his attesting signatures at point A and the statement was duly certified under the Bankers' Book CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 33 of 176 34 of Evidence Act, which is Ex. PW8/E (In CC no. 05/15).
38. After seeing statement of account pertaining to Current account no. 802 in the name of Kamal Enterprises running in 28 sheets, witness deposed that each page bear his attesting signatures at point A and the statement was duly certified under the Bankers' Book of Evidence Act, which is Ex. PW8/F (In CC no. 05/15).
39. After seeing statement of account pertaining to Current account no. 712 in the name of M/s. P.D. Enterprises running in 30 sheets, witness deposed that each page bear his attesting signatures at point A and the statement was duly certified under the Bankers' Book of Evidence Act, which is Ex. PW8/G (In CC no. 05/15).
40. After seeing statement of account pertaining to Current account no. 633 in the name of Pragati Conductors running in 50 sheets, witness deposed that each page bear his attesting signatures at point A and the statement was duly certified under the Bankers' Book of Evidence Act, which is Ex. PW8/H (In CC no. 05/15).
41. After seeing statement of account pertaining to Current account no. 813/5085 in the name of Strip India CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 34 of 176 35 running in 24 sheets, witness deposed that each page bear his attesting signatures at point A and the statement was duly certified under the Bankers' Book of Evidence Act, which is Ex. PW8/J (in CC no. 05/15).
42. He has further deposed that all the above mentioned accounts belong to Bank of Maharashtra, Dr. Mukherjee Nagar Branch, Delhi which was handed over to CBI by him.
43. He has further deposed that apart from aforesaid statement of accounts, he had also handed over the account opening form pertaining to current A/c no. 559, in the name of G.K. Electronics, 10, Bhola Nath Nagar, Shahdara, Delhi through its proprietor Gulshan Kumar and Current A/c no. 786 in the name of M/s. G.K. Industrial Corporation through its proprietor Devender Kumar Gupta and Mrs. Urmila Devi, Ex. PW8/K and Ex. PW8/l alongwith Account opening form, Ex. PW7/E, Ex. PW7/F, Ex. PW7/G, Ex. PW7/H and Ex. PW7/J (In CC no. 05/15).
44.PW5 is Sh. Mohinder Singh , Govt. examiner of questioned documents, Hyderabad. He deposed that CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 35 of 176 36 the documents pertaining to this case were received for examination in the office of GEQD Shimla and he was posted as an Asstt. Govt. Examiner in that office at that time. The documents of this case were received in the office of GEQD Shimla vide SP CBI SIUVIII, New Delhi letters no. 4195 dated 25.06.1998, 4643 dated 13.07.1998 and 5550 dated 17.08.1998. He has deposed after comparing specimen handwriting/signatures of A1 V.K. Jain, A4 Praveen Kr. Gupta another accused persons in this case with the constant documents and has proved the his opinion which is Ex. PW5/O1. The detailed reasons in support of his opinion are Ex. PW5/D2 , Ex. PW5/D3 is a covering letter vide which the reasons alongwith the documents were sent SP CBI.
45. PW6 is Dinesh Kr. Bhardwaj , who was working as Senior Manager in the Bank of Maharashtra, from the year 1973 to 31.03.2006 and he knew V.K. Jain (A1) who was the Branch Manager of Bank of Maharashtra, Dr. Mukherjee Nagar Branch during the relevant period. He also deposed that A1 while working as CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 36 of 176 37 Branch Manager , Dr. Mukherjee Nagar Branch had committed various irregularities by wrongfully debiting clearing House Receivable account (CHR account). As A1 used to wrongfully retained the cheques received in clearing when there was no sufficient balance available to honour the cheques and thereafter, after several days when the balance used to be available in the account, he would adjust these entries allowing the wrongful credit.
46. He has deposed regarding the cheques no. 142584, 142583, 142585, issued by M/s. P.D. Enterprises all for Rs. 2.5 lacs each and also the cheque no. 251166 issued by Uma Super Insulation who was also the customer of Bank of Maharashtra for Rs. 2 lac. He further deposed that all these four cheques amounting to Rs. 8,50,000/ were received in clearing on 01.07.1987 and there was no sufficient balance available in party's account. So, the same could not be passed. However, these cheques were wrongfully retained in the Bank instead of returning and the amount was debited to office account CHR vide debit CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 37 of 176 38 voucher dated 01.07.1987, copy of the same is Ex. PW6/B(original has been kept in CC no. 05/15 with Ex. Mark PW12/E). Parties continued to enjoy wrongfully bank funds for 30 days without paying any interest and subsequently when these parties arranged funds, the entry was reversed on 31.07.1987 vide credit voucher Ex. PW6/C(Original has been kept in CC no. 05/15 with Ex. Mark PW12/F). The wrongful debit of Rs. 8,50,000/ on 01.07.1987 was done by A1 V.K. Jain, the then Branch Manager, Dr. Mukherjee Nagar Branch and the respective cheques were kept by him wrongfully without returning the same to the clearing house immediately. He has also deposed with regard to cheque no. 135378 for the amount of Rs. 2 lacs issued by G.K. Electronics and also deposed with regard to cheque no. 135379 also issued by G.K. Electronics and another cheque no. 135381 issued by G.K. Electronics. These cheques are Ex. PW6/D to PW6/F. The cheque PW6/D was issued on 18.06.1987 whereas cheque Ex. PW6/E and PW6/F were issued on 19.06.1987.
CC No. 06/15
CBI Vs. Vinay Kr. Jain & Ors 38 of 176 39
47.The witness after seeing the photocopy of statement of account of G.K. Electronics (which already Ex. PW8/C in CC no. 88/1/06), deposed that three cheques were debited to M/s. G.K. Electronics account on 28.06.1987 and after seeing the photocopy of credit voucher Ex. PW6/H, he deposed that CHR account was credited by Rs. 5,50,000/ by A1 V.K. Jain.
48. PW7 is Sh. Suresh Kumar Goel, who remained posted as Chief Manager, Inspection and Audit, Head office at Pune. He has deposed regarding the banking procedure and had also conducted enquiries regarding the work of Dr. Mukherjee Nagar branch.
49. PW8 is Sh. Ajit Kumar Singh who conducted part investigation in this case. He has proved copy of FIR pertaining to present case bearing RC no. 7(A)/94 SIU(VIII) which is Ex. PW8/A. He also deposed that during investigations, he examined various witnesses, recorded their statements also seized/collected certain documents as per the relevant seizure memos and he had also taken the specimen signatures, handwriting of A1, A4 and other accused persons of this case and CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 39 of 176 40 also sent the questioned documents alongwith specimen writing and signatures to the opinion of GEQD CFSL,Shimla and the opinion is already on record exhibited as Ex. PW5/D1 and Ex. PW5/D2. After the completion of investigation, he filed chargesheet on 04.12.1998.
50. Thereafter, all the incriminating evidence appearing against the accused persons was put to them in their separate statements recorded under 313 Cr.P.C. in which defence of the A1 V.K. Jain was that he had been falsely implicated in this case as the other officers of the Bank of Maharashtra were inimical to him as he was awarded commendation certificates, letters of praise, for his work and duties, therefore, they have given false statement against him. The Dr. Mukherjee Nagar branch was subjected to inspection and audit by internal department of bank as well as by RBI and there was nothing adverse against him in any of the said audit reports which were even otherwise withheld by the prosecution.
51.He has also stated that various Heads of general CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 40 of 176 41 ledger including Bills payable and CHR were always tallied and a statement to this effect was regularly sent to controlling officer and no reminders was ever received from them. The cheques issued by various parties received for payment through clearing were passed only when there was sufficient balance to honour them. In case there was insufficient balance to pass/honour the cheques issued by the parties, such cheques were returned unpaid to the presenting banker and the amount of such cheques was debited to the CHR a/c as per the prescribed rules and legal procedures of the bank. Such returned cheques for want of insufficient balance in their respective accounts were duly entered in CHEQUE RETURN REGISTER. Prosecution has purposely withheld such "Cheque Returned Register". Cheques deposited by customers for clearing and drawn on other local banks were duly entered and written in "Outward Clearing Register" in which all details such as Customer/Depositer's name, cheque no., name of drawee bank and place and amount of cheque were duly written. The prosecution CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 41 of 176 42 has purposely withheld such "Outward clearing Register". Various duties were assigned to employees/officers as per office orders issued from time to time and such duties were carried out by them and not by the manager. The prosecution has purposely withheld such duty register.
52. He has also stated that no sanction was obtained for prosecuting him in this case as all the duties which he was discharging as a Manager was in a capacity of public servant and the law protects the innocent public servants from prosecution by making it mandatory under 197 Cr.P.C. and also section 19 of PC Act. However, he chose to lead defence evidence, but he gave a statement on 08.02.2016 in the court that he does not want to lead defence evidence.
53.Separate statement of accused Praveen Kumar Gupta A4 U/s 313 Cr.P.C was also recorded. He also stated that he had been dealing with the bank honestly and he never entered into criminal conspiracy with A1 or with any other persons for the purpose of preparation of false documents or falsifying the accounts for CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 42 of 176 43 making any false entry in any register /voucher the bank did not incur any loss on account of his act or omission. He had been deputing his employee for the purpose of depositing cash and preparation of pay orders. He never had any relation with the firms namely M/s. Uma Super Insulation, M/s Diamond Cables and Conductors, M/s Mohit Enterprises, M/s P D Enterprises, M/s Strip India, M/s Nitin Wire Industries, M/s Chitanya Powerline (P) Ltd., M/s G.K. Industrial Corporation.
54. His two firms namely M/s Kamal Enterprises and M/s Pragati Conductors had very clean and transparent transactions and he and his firms M/s Kamal Enterprises and M/s Pragati Conductors did not do or commit any unlawful or illegal act with the transactions of the bank nor caused any kind of loss to the bank and no offence has been committed by him u/s 120B IPC, Sec. 418,420,467,468,471 IPC and Section 5(2) r/w 5(1)(d) of P.C. Act, 1947 corresponding section 13(2) r/w Sec. 13(1)(d) of P.C. Act 1988.
55.He also stated that he wants to lead defence evidence CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 43 of 176 44 under section 313 Cr.P.C. but he gave a statement on 08.02.2016 in the court that he does not want to lead defence evidence.
56.I have heard Sh. H.R. Dhamija, counsel for the A1, A4 and also perused the written submissions filed by him and learned Special PP for CBI Sh. J.S. Wadia.
57.The Ld. counsel for the accused persons have relied upon following judgments:
2016(1)JCC 243 titled as " Prof. N.K. Ganguly v. CBI New Delhi ; 2014 (2) C.C. Cases (HC) 95 titled as "Maqsood Ahmed v. State (Govt. of NCT of Delhi)" ; 2015 (1) JCC 214 titled as "Anvar P.V. v.
P.K. Basheer & Ors." ; 2015(4) JCC 2205 titled as "
Kasif v. State".
58.On the other hand, Special PP for CBI has relied upon only judgment on the point of sanction under section 197 Cr.P.C, which are as under:
(i)1. HHB Gill Vs. The King AIR 1948 PC 133
(ii)Amrik Singh vs. State of Pepsn AIR 1955 SC 309 = 1955 Cr.LJ 865
(iii) Hariha Prasad Vs. State of Bihar 1972 CrlJ 707
(iv) State of Kerala Vs. Padmanbhan JT 1999 SC 499
(v) Prakash Singh Badal Vs. S.O.Punjab (2007) 1 CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 44 of 176 45 SCC 1
59.Ld. defence counsel has assailed the case of the prosecution on various counts; firstly, that prosecution has failed to examine the complainant in this case who was the author of the FIR registered against the accused persons namely Mr. Rene for which no plausible explanation has also been furnished.
Secondly, that no sanction to prosecute under section 197 Cr.P.C. has been obtained against A1 V.K. Jain as A1 was acting as branch manager during the course of discharge of his official duties, therefore, sanction to prosecute was required in view of judgment of Prof. N.K. Ganguly (supra), thirdly, he has argued that there is no evidence of conspiracy between A1 and A4 and other accused persons who were proclaimed offenders as it is not the case of the prosecution that there was any agreement to commit any offence between A1 and A4. He has further argued that there are various deficiencies in the prosecution case as prosecution withheld very important documents pertaining to the present case CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 45 of 176 46 which would have shed light on the transactions in question which were deliberately withheld by the prosecution, non production of which should be held adversely against the prosecution, for instance, RBI Schedule not produced/proved nor any cheque register regarding return/receipt of cheque has been produced, nor cash book , general register, transfer scroll, cash scroll, CHR register and CHR Supplement list have been produced.
60.He has further argued that despite various internal/external audits carried out by the internal audit department of Bank of Maharashtra as well as by RBI, no infirmities were detected in the working of the A1, rather A1 was issued various commendation certificates by the CMD of the Bank from time to time praising his work which shows that he had been falsely implicated in this case for ulterior motives.
61. He has further argued that the parties to whom the payments were allegedly credited have not been examined nor the bank officials pertaining to the parties where the said parties were having accounts, CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 46 of 176 47 have been examined i.e officials of collecting banks. He has further argued that there is a delay in lodging the FIR which has not been explained. He has further argued that the statement of accounts produced by the prosecution are computerized output since no certificate under section 65B of the Evidence Act has been obtained, therefore the said statement of accounts are not admissible in evidence in view of the settled law laid down in the judgment Anvar P.V. (supra) , therefore, he has argued that in view of the above arguments and various lacunae in the case of prosecution, accused persons deserve benefit of doubt and are liable to be acquitted.
62.On the other hand, the Ld. Special PP for CBI has refuted the above arguments of the ld. defence counsel and he has argued that the prosecution has been able to prove its case against both accused persons beyond any sort of reasonable doubt in view of the overwhelming evidence lead on the record as most of the prosecution witnesses have identified the CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 47 of 176 48 signatures of A1 on various documents/instruments and have also stated that A1 was instrumental in committing the forgery/falsification of accounts and passing the cheques of A4 and other accused persons when presented in the branch, where A1 was working despite no balance in the said accounts on the day of presentation of said cheques and it was modus operandi of A1 to debit. The said amount to CHR Account of the bank on the particular date despite party not having any sufficient balance in its account and thereafter when there were funds in the account of the party, the CHR account entry was reversed and was credited and the account of the party was debited after lapse of so many days which resulted into bank suffering huge loss on account of loss of interest for the said period.
63. He has further argued that the relevant CHR debit/credit entries have been clearly proved by the prosecution to show the modus operandi of A1. He has also argued that there was a clear cut conspiracy between A1 and A4 as A4 has been clearly CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 48 of 176 49 benefited by the acts of A1 as various cheques belonging to A4 were passed on a particular date without having any sufficient balance in the account of A4 by debiting the CHR of the bank which can never be done in the case of individual party as it is a account in which the consolidated amount of outgoing or inward cheques received in the bank for clearing /payment are credited or debited. Later on when there were funds available in the account of A4, the account of A4 was actually debited by reversing the entry thereby resulting in pecuniary gain to the accused A4 and corresponding loss to the bank.
64. He has further argued that no sanction is required to prosecute A1 under section 197 Cr.P.C. as it was no part of his official duty to commit forgeries / falsification of the accounts of the bank and to make wrong entries in the CHR account and passing the cheques of the parties without having any sufficient balance in the same at the time of presentation of cheque(s), and later on reversing the entries when the funds were available in the said accounts. Therefore, he has CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 49 of 176 50 argued that there is no nexus between the above acts and the official discharge of duties as public servant by A1, therefore no sanction under section 197 Cr.P.C was needed. Regarding the statement of accounts, he has argued that no certificate under section 65B of Indian Evidence Act is needed as the said statement of accounts were filed prior to the amendment in the Bankers' Books of Evidence Act in the year 2000, which were carried out when corresponding amendments were made in I.T.Act in the year 2000. As all the statement of accounts are duly attested by the concerned officer under the Bankers' Books of Evidence Act, 1891. He has also argued that even otherwise the statement of accounts filed on record are the attested copies of the ledgers of the statement of accounts and are not computer output requiring certificate under section 65B of Indian Evidence Act and further most of the entries are manual in nature which even otherwise does not require any certificate under section 65B of the Indian Evidence Act.
65.He has further argued that merely because no infirmity CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 50 of 176 51 could be deducted during the internal audit of the bank and during the audit done by RBI, does not mean that there was no irregularity or falsification of the accounts by A1. The delay in lodging the FIR took place due to the late detection of the fraud in the branch for which no benefit could be extended to the accused.
66.He has further argued that mere non production of some additional corroborative piece(s) of evidence in the shape of RBI Schedule, cheque register regarding return/receipt of cheques, cash book, general register , transfer scroll, cash scroll, CHR register etc. does not effect the prosecution case in any way as the prosecution even otherwise from the evidence already lead on record, has proved its case beyond reasonable doubt against both the accused persons who are liable to be convicted.
67. For the sake of clarity of discussion, the present case can be divided into various headings. Statement of Accounts:
68.PW4 Mr. R.K. Khurana has proved statement of account(s) pertaining to the current account no. 576 in CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 51 of 176 52 the name of Uma Super Insulation running into 19 sheets that each page bears his attesting signatures at point A. the statement is duly certified under the Bankers' Books of Evidence Act , same is Ex. PW8/A (Original in CC no. 5/15) ( vide order dated 10.05.2016, it was pointed out that common evidence was recorded in both the cases i.e. CC no. 5/15 and 6/15 and the copies of statements of witnesses recorded in one case was kept in another case and viceversa. Therefore, at the request of Ld. defence counsel, evidence recorded in one case is also allowed to be read as evidence in another case as both are interconnected matter. Similarly, marks put on certain documents in one case(though pertaining to another case may be read as exhibited documents in another case and viceversa)
69. PW4 has also proved statement of accounts pertaining to current account no. 803 in the name of Mohit Enterprises running into 36 sheets, each page CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 52 of 176 53 attested and certified by him under the Bankers' Books of Evidence Act, same is Ex. PW8/B. Similarly, he has also proved the current account no. 559 in the name of G.K. Electronics running into 65 sheets duly attested and certified by Bankers' Books of Evidence Act, same is Ex. PW8/C.
70. He has also proved statement of account pertaining to Current Account no. 1009 in the name of M/s Diamond Cables and Conductors Company running in 16 sheets duly attested and certified by Bankers' Books of Evidence Act, same is Ex. PW8/D.
71.He has also proved statement of account pertaining to Current Account no. 786 in the name of M/s G.K. Industrial Corporation running into 30 sheets duly attested and certified by Bankers' Books of Evidence Act, same is Ex. PW8/E.
72.He has also proved statement of account pertaining to Current Account no. 802 in the name of Kamal Enterprises running into 28 sheets duly attested and certified by Bankers' Books of Evidence Act, same is Ex. PW8/F. CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 53 of 176 54
73. He has also proved statement of account pertaining to Current Account no. 712 in the name of M/s P.D. Enterprises running into 30 sheets duly attested and certified by Bankers' Books of Evidence Act, same is Ex. PW8/G.
74.He has also proved statement of account pertaining to Current Account no. 633 in the name of Pragati Conductors running into 50 sheets duly attested and certified by Bankers' Books of Evidence Act, same is Ex. PW8/H.
75.He has also proved statement of account pertaining to Current Account no. 813/5085 in the name of Strip India running into 24 sheets duly attested and certified by Bankers' Books of Evidence Act, same is Ex. PW8/J.
76. Ld. defence counsel has argued that all these statement of accounts are computer output and is an electronic piece of evidence. Since no certificate under section 65B has been produced by prosecution certified by the person who had taken output of the said computer generated accounts without specifying CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 54 of 176 55 the computer from which it was taken. Therefore, said statement of accounts are not admissible in evidence. In this regard he has relied upon judgment titled as "
Anvar P.V." (supra), in which it was held as under:
"An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65B are satisfied. Thus, in the case of CD, VCD, chip etc., the same shall be accompanied by the certificate in terms of Section 658(sic.) (be read as 65B) obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible."
77.On the contrary, Ld. Special PP for CBI has argued that all the statements have been certified under Banker's Books of Evidence Act and they were deposited in the court in the year 1998. At the time of submission of chargesheet. He has further argued that section 65B was inserted in the Evidence Act by amendment w.e.f. 17.10.2000. therefore, the same CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 55 of 176 56 would not effect the documents filed retrospectively. He has also aruged that even the corresponding amendments in the Banker's Books of Evidence Act were carried out in the year 2000. Therefore, both of them will not have any retrospective effect unless and until specified in the amending Act.
78. I have gone through the rival contentions. The admissibility of the documents has to be seen at the time when the said documents were tendered in evidence. It may be that the said documents may have been filed earlier to the amendment to the section 65B of Evidence Act and also the corresponding amendment to Banker's Books of Evidence Act in the year 2000, but, filing of documents alongwith chargesheet is one thing and the exhibition of the documents and tendering the said documents into evidence is different. In the present case, the statement of account has been proved int he testimony of PW4 on 19.05.2009. therefore, their admissibility or nonadmissibility has to be seen with regard to the law in force at the time of tendering the said documents. CC No. 06/15
CBI Vs. Vinay Kr. Jain & Ors 56 of 176 57 Therefore, Section 65B would be applicable to the statement of accounts if they are the computer generated output or electronic evidence.
79.However, judicial notice can be taken of this fact that in those days, computers were not in vogue and in banks there used be Automated Ledger Posting Machine (ALPM) which virtually had no memory. Therefore, those machines could not be termed as computers, therefore, as a corollary, it follows that any print out taken from said machine cannot be termed as computer output, so as to fell foul of section 65 B of Evidence Act. Even otherwise, substantial number of statement of accounts are manual one , therefore, applicability of section 65 B cannot be there.
80.With regard to the statement of accounts Ex. PW8/A pertaining to Uma Superinsulation, same is manual photocopy of the ledger, duly certified under Banker's Books of Evidence Act, 1891, therefore, section 65 B would not have any applicability.
81.With regard to the statement of accounts Ex. PW8/B CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 57 of 176 58 pertaining to Mohit Enterprises, some part of it is manual and some part of it seems to have been generated from ALPM. The perusal of some of the sheets would show that the time of generation of the same has been mentioned as 04.08.1988. The same is not a computer output or printout taken from the computer but it is the photocopy of the extract of ledger, since there are no perforation marks on some of the sheets as the rest of sheets are manual in nature. Since, in those days, computer generated sheets used to be having perforation marks taken on green colour paper and the copy of the said extract of ledger must have been taken by the IO prior to the filing of the chargesheet in the year 1998 and after the registration of the FIR in the year 1994. The IO could not have taken copy of the extract of the ledger prior to 1994. The date of generation of some part of the statement of accounts is 1987/1988/1989/1990/1991 as discussed above, therefore, it appears that these sheets were bound into a ledger and from their photocopy was taken and same was certified under CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 58 of 176 59 Banker's Books of Evidence Act, 1891 prevailing at that time, therefore, section 65 B would not have any applicability in this case.
82.With regard to statement of accounts Ex. PW8/C pertaining to G.K. Electronics, substantial part of it is manual and some part of it is having the date of 1988, therefore, the same logic will apply to the statement of accounts as above, therefore section 65 B of Evidence Act will have no applicability.
83.Ex.PW8/D is statement of account pertaining to Diamond Cables and Conductors. Date of generation is 1989/90/91 and the same is also certified under Banker's Books of Evidence Act, 1891, which are the photocopy of extract of ledger. Section 65 B would not have any applicability.
84.Ex. PW8/E is statement of accounts pertaining to G.K. Industrial Corporation bearing current account no.
786. Substantial part of it is manual and some part of it is having the year of 1988/1989/1990/1991, therefore, the same logic will apply to the statement of accounts, CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 59 of 176 60 therefore section 65 B of Evidence Act will have no applicability.
85.Ex. PW8/F is statement of current account bearing no.
802 in the name of Kamal Enterprises running ton 20 sheets duly attested under Banker's Books of Evidence Act. Substantial part of it is manual and some part of it is having the year of 1987/1988/1989/1990/1991, therefore, the same logic will apply to the statement of accounts as section 65B of Evidence Act will have no applicability.
86.Ex. PW8/G is the statement of account bearing Current Account no. 712 in the name of P.D. Enterprises running into 30 sheets which have been duly attested under Bankers' Books of Evidence Act. Substantial part of it is manual and some part of it is having the year of 1987/1988/1989/1990/1991, therefore, the same logic will apply to the statement of accounts as section 65B of Evidence Act will have no applicability.
87.Ex. PW8/H is the statement of account bearing Current Account no. 633 in the name of Pragati Conductors running into 50 sheets which have been CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 60 of 176 61 duly attested under Bankers' Books of Evidence Act. Substantial part of it is manual and some part of it is having the year of 1986/1987/1988/1989/1990/1991, therefore, the same logic will apply to the statement of accounts as section 65B of Evidence Act will have no applicability.
88. Ex. PW8/J is the statement of account bearing Current Account no. 813 in the name of Strip India running into 24 sheets which have been duly attested under Bankers' Books of Evidence Act. Substantial part of it is manual and some part of it is having the year of 1987/1988/1989, therefore, the same logic will apply to the statement of accounts as section 65B of Evidence Act will have no applicability.
SANCTION U/s 197 Cr.PC QUA A1
89.Regarding u/s 197 Cr.p.C as discussed above, ld.
counsel for accused no.1 has argued that no sanction has been obtained against A1 to prosecute him in this case which was absolutely necessary as all the Acts were done by him, while working as Branch Manager of Bank of Maharashtra, Dr. Mukherjee Nagar branch CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 61 of 176 62 which were in discharge of his official duties as Manager of the said Branch. As all the vouchers/cheques and all other instrument were transacted in the normal course of banking business. On the contrary, the ld. special PP for CBI has argued that it was no part of his official duties to enter into conspiracy with the A4 and other accused persons in order to cause wrongful loss to the bank and wrongful gain to himself as well as to the accused persons nor it was the part of his official duties to falsify the accounts and to prepare forged documents or to cause any pecuniary advantage to the accused persons while acting against the public interests. In this regard, he has relied upon judgment titled as "Prof. N.K. Ganguly v. CBI New Delhi, 2016(1) JCC 243 specifically para25 which is reproduced as under:
"...... From a perusal of the case law referred to supra, it becomes clear that for the purpose of obtaining previous sanction from the appropriate government under section 197 of Cr.P.C., it is imperative that the alleged offence is committed in CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 62 of 176 63 discharge of official duty by the accused. It is also important for the Court to examine the allegations contained in the final report against the Appellants, to decide whether previous sanction is required to be obtained by the respondent from the appropriate government before taking cognizance of the alleged offence by the learned Special Judge against the accused. In the instant case, since the allegations made against the Appellants in the final report filed by the respondent that the alleged offences were committed by them in discharge of their official duty, therefore, it was essential for the learned Special Judge to correctly decide as to whether the previous sanction from the Central Government under section 197 of Cr.P.C. was required to be taken by the respondent, before taking cognizance and passing an order issuing summons to the appellants for their presence."
90.In view of the said judgment, it is imperative that alleged offence is committed in discharge of official duties by the accused and in this regard the court has to examine the allegations contained in the final report to decide whether previous sanction was required to be CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 63 of 176 64 obtained by the CBI from the appropriate authority before taking the cognizance.
91.In my respectful view the said judgment is not applicable to the peculiar facts and circumstances of the present case, as it is no part of the official duties of A1to enter into conspiracy with other accused persons who had been chargesheeted including A4 or to falsify the accounts of the bank by making false entries or to prepare forged documents/vouchers and passing the cheques of the accused persons despite their account having no balance on the particular date, when the cheques were presented for encashment, later on debiting the said account, when the funds were available in the said accounts of the accused persons thereby causing loss of interest to the bank without acknowledging those transactions. The facts of N.K. Ganguly case(Supra) were totally different from the present case and is distinguishable from the fact of the present case, as the said accused persons had the power to transfer plots alloted to certain members of CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 64 of 176 65 Group Housing Society, who were allegedly not entitled to the same as per the bylaws of the society, whereas in the present case A1 in conspiracy with A4 and other accused persons had falsified the accounts of the bank, as also prepared forged vouchers and other documents in order that accused persons get pecuniary advantage without any public interest and thereby causing wrongful loss to the bank. Further, it has been held in numerous judgments of the Apex Court that it is not every offence committed by a public servant which requires sanction u/s 197 Cr.P.C. It is no part of the duty of public servant while discharging his official duty to enter into criminal conspiracy or to indulge in criminal misconduct. In this regard the following judgments relied upon by the prosecution(Supra) are reproduced as under:
1. HHB Gill Vs. The King AIR 1948 PC 133 A public servant can only be said to act or purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty. Thus, a Judge, neither acts nor purports to act as a judge in receiving bribe.
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CBI Vs. Vinay Kr. Jain & Ors 65 of 176 66
2. Amrik Singh vs. State of Pepsn AIR 1955 SC 309 = 1955 Cr.LJ 865 It is not every offence committed by a public servant which requires sanction U/s 197 Cr.P.C. It is no part of the duty of public servant while discharging his official duty to enter into criminal conspiracy or to indulge in criminal misconduct.
3. Hariha Prasad Vs. State of Bihar 1972 CrlJ 707 As far as offence of criminal conspiracy punishable U/s 120 r/w 409 IPC and also Section 5(2) of PC Act, are concerned, they cannot be said to be of the nature mentioned in section 197 Cr.P.C. To put it shortly, it is no part of public servant while discharging his official duties, to enter into criminal conspiracy or to indulge in criminal misconduct, want of sanction U/s 197 Cr.P.C is therefore no bar.
4. State of Kerala Vs. Padmanbhan JT 1999 SC 499 Sanction for prosecution U/s 197 Cr.P.C is not required if offences are U/s 409 r/w 120-B IPC; and accused cannot claim immunity on the ground of want of sanction, if he ceased to be a public servant on the day when Court has taken cognizance of the said offence.
5. Prakash Singh Badal Vs. S.O.Punjab (2007) 1 SCC 1 The offence of cheating U/s 120B IPC r/w S 467, 468, 471 IPC, can, by no stretch of imagination, be regarded as having been committed by any public servant while acting or purporting to act in discharge of his official CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 66 of 176 67 duty. Sanction U/s 197 Cr.P.C is not required.
92.In view of the law laid down in the above judgments, which is apposite to the facts of the present case, the act of committing forgery/preparation of forged vouchers by A1 in conspiracy with A4 and other accused persons, fraudulently and dishonestly without adhering to the prescribed procedure of the bank and by abusing his official position as public servant allowed them to enjoy bank funds of the tune of Rs. 20 crores without sanction, by way of debiting cheques against office accounts of the bank i.e. CHR and other accounts thereby, causing loss to the Bank without public interest, whereby causing pecuniary advantage to the A4 and and other accused persons who have been chargesheeted, same cannot be said to be any part of his official duties that is to say that there is no nexus between the act and discharge of his official duties, as it is no part of official duties of A1 to indulge into official conspiracy or misconduct, therefore no sanction u/s 197 Cr. P.C. was required in the peculiar CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 67 of 176 68 facts and circumstances of the present case. GENERAL PROCEDURE REGARDING THE COLLECTION/PRESENTATION OF CHEQUES.
93.In this regard, PW1 Ramesh Kumar Pahuja has explained the procedure regarding the procedure of operation of clearing house /clearing house system, payment/collection of cheques as he has deposed as under:
As regard the procedure for operation of clearing house/clearing house system is concerned, the payment of cheques of various local banks is exchanged/cleared/collected through centralized clearing house system operated by Reserve Bank of India. Under this system cheque deposited at collecting bank are sent to Reserve Bank of India through service branch of the respective bank. The cheques are sorted bank wise and branch wise at clearing house and are lodged with respective paying branches next day for payment. At paying branch if there is sufficient balance in the account of the party and the negotiable instrument is not CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 68 of 176 69 otherwise invalid, then the paying branch clears the cheque after debiting the account of issuing party.
In case of insufficient balance the cheque is returned on the same day by the paying branch to the collecting branch through clearing house. If cheque is not returned by the paying branch to clearing house on the same day, the cheque can be returned on the counter on the next day before commencement of the business hours and if the cheque is not returned as mentioned above, it is deemed to have been cleared/paid and the collecting bank credits the amount of the cheque in the account of the party presenting the cheque and allows the withdrawal to the party.
In respect of operation of general ledger (G/I), nominal account, clearing house receivable(CHR) is concerned, if there is no sufficient balance in the account in which cheque is presented for payment, bank debits to office account G/I CHR while returning the cheque. On receipt of the suitable claim from the collecting bank who has already received the money CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 69 of 176 70 through clearing house while presenting the cheque, the G/I. CHR account is adjusted next day. In case of counter returns the money is received from the collecting bank directly by pay order which may take maximum 7 days.
94.Similarly, PW2 Sh. N.M. Lokhande has deposed with regard to the said procedure as under:
CHR Account is Clearing House Receivable Account maintained at a Branch for adjustment of Inward/Outward clearing sent from Branch. This is an office account and no entry pertaining to any customer account is made in this account. This account is not be used for debiting any cheque received in the branch for clearing. The cheques are debited to the respective account holder's account in their account. In case of insufficient balance the cheque presented in clearing is returned back to the Presenting Bank with a reason memo stating the drawer does not have the sufficient fund to honour the cheque in the account. Under no circumstances, cheque is passed by debiting this office account i.e. CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 70 of 176 71 CHR Account.
INSTRUMENT(S)/CHEQUE(S)
95.PW1 R.K.Pahuja has deposed that he had worked with Mr. V.K.Jain, the then Branch Manager, Bank of Maharashtra, Mukherjee Nagar Branch, New Delhi as he had seen him writing and signing and was acquainted with his handwriting and signatures. After seeing the original cheque No. 401984 dated 12.04.89, he stated that this cheque was issued by current account No. 633 of M/s Pragati Conductors and was passed for payment of Rs. 5 lacs through office account GL CHR through clearing by Mr. V.K.Jain, as there was no balance in the said account. This cheque was presented on 14.04.89 and was ultimately debited to the current A/c on 27.06.89. Therefore interest for the period 14.04.89 to 26.06.89 has not been recovered by Mr. V.K.Jain causing loss of interest to the bank. Copy of the said cheque was Ex PW1/1(original cheque is D76 in CC No. 05/15)
96. He has also stated after seeing the certified copy of statement of account of current account No. 633 of M/s CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 71 of 176 72 Pragati Conductors that the amount of the above cheque was adjusted vide transfer entry appearing at point A on ExPW1/2. He further stated that the cheque ExPW1/1 was presented for clearing by Bank of India, Bahadur Shah Zafar Marg on 13.04.89 as per the clearing stamp affixed on the back of the original cheque(available in CC No. 05/15).
97.PW2 is another witness who has deposed regarding the same cheque i.e cheque No. 401984 dated 12.04.89(ExPW2/O1 in CC No. 06/15) for Rs. 5 lacs drawn by M/s Pragati Conductors(A/c no. 633) presented for payment through clearing dated 13.04.89. The said cheuqe had been debited on 27.06.89 instead of 13.04.89 in the account of M/s Pragati Conductors as per statement of account Ex PW1/2.
98.The account opening form pertaining to the said current account 633 in the name of M/s Pragati Conductors through its proprietor Praveen Kumar Gupta(A4) is ExPW7/E.
99.PW4 is Sh. R.K.Khurana has proved the statement of CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 72 of 176 73 account pertaining to the said account which is Ex PW8/H duly certified under the Bankers' Book of Evidence Act. Accused No. 4 Praveen Kumar Gupta in response to the question no. 50 in his statement U/s 313 Cr.P.C has admitted that he is the proprietor of M/s Pragati Conductors and he opened account for the purposes of banking transaction.
100.Further in response to the question no 58 with regard to statement of account of M/s Pragati Conductors he stated that the prosecution has not been given the complete and correct statement of account and there has been overwriting and cuttings at various places and the same was also not accompanied by any certificate U/s 65B of Evidence Act, thereby not denying the fact that statement of account running into 50 sheets was of Pragati Conductors, of which he was a proprietor. In any case, questioned handwriting at point Q73 on the original cheque D76(ExPW2/O1 in CC No. 05/15) was also sent to GEQD expert who vide opinion No. 3 of his report ExPW5/O1 opined that the author of said Q73 and the specimen writing and CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 73 of 176 74 signatures of A4 which was sent to him for comparison, were written by one and the same person.
101.Statement of account ExPW1/2 at page 383 reveals that on the day when the said cheque came to the Bank of Maharashtra, Mukherjee Nagar Branch on 13.04.89 for collection there was only a balance of Rs. 1516.36 in the account of M/s Pragati Conductors and though the cheque no. 401984 was for Rs. 5 lacs, it was yet passed and vide entry on 27.06.89 same was debited into the account of M/s Pragati Conductors when there was sufficient balance in the account on that particular day, thereby causing loss of interest between 13.04.89 and 27.06.89.
102. Similarly PW1 has also deposed with regard to another instrument/cheque bearing No. 401985 dated 12.04.89 for Rs. 2.5 lacs relating to same account No. 633 of M/s Pragati Conductors. Copy of the cheque is ExPW1/3(original in CC No. 05/15 D77 ExPW2/O2). The said cheque ExPW1/3 was also presented through clearing by Bank of India, Bahadur Shah Zafar Marg on 14.04.89, as per the clearing stamp dated CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 74 of 176 75 13.04.89 affixed on the back of the original cheque and as per statement of account of M/s Pragati Conductors ExPW1/4 (ExPW1/2 in this case), there was no adequate balance on said account on 14.04.89, as such no debit could have been allowed when the cheque was received by the bank.
103.However, A1 had unauthorizedly allowed the debit of Rs. 2,50,000/ through office account GLCHR and passed the cheque in his own hand. He also identified the signatures of A1 at point A on the said cheque. He also stated that the said cheque was debited in the account on 27.06.89 and in this regard entry available in the statement of account ExPW1/2 at point B, whereby A1 allowed the unauthorized debit causing loss of interest @ 20% p.a on the said amount for the period 14.04.89 to 26.06.89, which was not recovered till date.
104.Similarly PW2 has also deposed after seeing the said cheque that the said cheque of Rs. 2.5 lacs drawn by M/s Pragati Conductors was presented for payment through clearing on 13.04.1989. The said cheque had CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 75 of 176 76 been debited on 27.06.89 instead of 13.04.89 in the account of M/s Pragati Conductors as per statement of account ExPW1/2.
105.As discussed above, the statement of account Ex PW1/2 of M/s Pragati Conductors shows that on 13.04.89 only a balance of Rs. 1516.36 when the cheque was sent for collection by the Bank of India, Bahadur Shah Zafar Marg through Bank of Maharashtra, Mukherjee Nagar Branch, Delhi, therefore the said cheque should not have been passed, yet the said cheque has been passed without debiting the account of M/s Pragati Conductors and the account was actually debited only on 27.06.89, when there was a sufficient balance available in the account of the party appearing at point B at page 384 of statement of Account ExPW1/2, thereby causing loss of interest between the period 13.04.1989 and 27.06.1989 to the bank. Questioned signatures at point Q74 on said cheque has been opined by handwriting expert vide opinion no. 3 in ExPW5/O1 that the author of the said cheque at point Q74 and specimen CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 76 of 176 77 handwriting and signatures of A4 matches with each other. In any case A4 has not denied that the said instrument/cheque was not issued by him.
106.Regarding the cheque no. 399905(D81 in CC No. 05/15) and D22 in this case for Rs. 7.5 lacs drawn by M/s Strip India which is ExPW1/5 in this case (Ex PW2/O3 in CC No. 05/15), PW1 has deposed that the said cheque for Rs. 7.5 lacs related to CC A/c No. 5085 of M/s Strip India. He has also proved copy of the said cheque ExPW1/5 as stated above. He also deposed that the said cheque was presented through clearing by Bank of India, Bahadur Shah Zafar Marg on 14.04.89, as per the clearing stamp dated 13.04.89 affixed on the back of the original cheque available in CC No. 05/15. He has also stated that statement of account pertaining to current account No. 5085 of M/s Strip India which is ExPW1/6 and as per statement of account there was no adequate balance in the said account on 14.04.89 and as such no debit could have been allowed to the party when the cheque was received by the bank. However, A1 had unauthorized CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 77 of 176 78 allowed the debit of Rs. 7.5 lacs through office account GLCHR and passed the cheque in his own signatures and the said cheque appearing the signatures of A1 at point A. The said cheque was debited to the account on 23.06.89 and the entry available in the statement of account ExPW1/6 appearing at point A. A1 by allowing the unauthorized debit caused the loss of interest @ 20% p.a on the said amount for the period 14.04.89 to 23.06.89, which has not been recovered till date.
107. Similarly PW2 has also deposed regarding the same cheque stating that the said cheque was presented for payment through clearing dated 13.04.89. The said cheque had been debited on 23.06.89 instead of 13.04.89 in the statement of account of M/s Strip India ExPW1/6.
108. Statement of account in the name of Strip India duly certified under the Bankers Books of Evidence Act running into 24 sheets is (ExPW8/J in CC No. 05/15) and PW1/6 in this case.
109.Perusal of statement of account of M/s Strip India
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79
ExPW1/6 in this case at page 341 shows that on the date of presentation of cheque of Rs. 7.5 lacs there was a negative balance in the said account of Rs. (97670.61) and the said cheque was ultimately debited on 23.06.89 after a lapse of more than 2 months, when there was a balance in the account of the party, thereby causing loss of interest to the bank for the period 14.04.89 to 23.06.89.
110.Specimen handwriting at point Q84 on the said instrument ExPW1/5 was sent to GEQD expert who after comparing the specimen handwriting and the admitted questioned handwriting opined vide opinion no. 4 ExPW5/O1, that the author of the said cheque are one and the same person and PW1 has identified the signatures on the said instrument at point A, as that belonging to the accused V.K.Jain(A1).
111. Accused Dalip Kumar Gupta is a proclaimed offender, his explanation could not be sought under Section 313 Cr.PC during the trial. However, prosecution has proved that the date on which the said cheque/instrument ExPW1/5 for Rs. 7.5 lacs was CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 79 of 176 80 passed, there was no balance in the account of M/s Strip India Ltd., the said cheque was also not debited on 13/140489, and it was only debited on 23.06.89 after lapse of more than two months.
112.Regarding the cheque/instrument No. 286913, same is ExPW2/P1 (D78 in CC No. 05/15) and D19 in this case. Regarding this cheque, PW2 has deposed that the said cheque of Rs. 7.5 lacs was drawn by Pragati Conductors(A/c No. 633) presented for payment through clearing dated 19/200689. He also stated after seeing the statement of account of M/s Pragati Conductors ExPW1/2, same was not debited to the respective account and was debited to the office account.
113. Perusal of said statement of account reveals that on 200689 , there was no sufficient balance in the account of M/s Pragati Conductors, yet the said cheque was passed through clearing. The actual debit entry in the account of M/s Pragati Conductors is not reflected in the statement of account or has been proved by the prosecution.
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CBI Vs. Vinay Kr. Jain & Ors 80 of 176 81
114. Regarding instrument/cheque No. 401359 dated 16.06.89 which is ExPW2/P2 which is the cheque drawn by the partner of M/s Kamal Enterprises in favour of M/s Shakti Metal for Rs. 3 lacs, it is stated by PW2 that the said cheque drawn by Kamal Enterprises(A/c No. 802) was presented for payment through clearing dated 19.06.89. On the reverse of the said cheque there was an endorsement dated 19.06.89 of Bank of India, Mayur Vihar Branch. The account opening form pertaining to said Kamal Enterprises has been proved by PW3. The said statement of account is ExPW7/G.
115.The statement of account pertaining to said Kamal Enterprises running into 28 sheets duly certified under the Bankers' Book of Evidence Act has been proved by PW4 R.K.Khurana which is ExPW8/F(in CC No. 05/15) and the statement of account in this case is Ex PW1/8. The signatures of the drawer of the cheque Q51 was sent for analysis by GEQD expert, who after comparing the questioned signatures with admitted signatures gave opinion no. 3 that author of the said CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 81 of 176 82 signatures matched with the specimen signatures of A4, who was one of the partner of the said firm other partner was Kamal Gupta.
116. A4 in response to the question no. 50 in his statement U/s 313 Cr.P.C has admitted that he was the partner of M/s Kamal Enterprises and he had also opened said account for the purpose of banking transactions. He also admitted in response to question no. 56 ExPW8/F(ExPW1/8 in this case) was Statement of account of said firm, however he stated same was not complete, as there were overwriting and cutting at various places and same is also not supported by the Certificate U/s 65B of Evidence Act. However, prosecution has not produced the ledger sheet with regard to the debiting of said cheque.
117.Regarding the cheque/instrument bearing No. 401358, PW2 has stated that the said cheque of Rs. 4.5 lacs was drawn by Kamal Enterprises presented for payment through clearing dated 19/200689. He also stated that the above cheque had not been debited to the respective account of the party and was debited to CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 82 of 176 83 the office account. Copy of the cheque is ExPW2/P3. The questioned signatures at point Q52 was opined to be positive of the drawer of the said cheque i.e A4 as per opinion no 3 of GEQD expert vide his report Ex PW5O1. However, the corresponding ledger sheet of the statement of account has not been proved by the prosecution, therefore the alleged modus operandi of A1 i.e passing the cheque in question when there was no available balance in the said account of M/s Kamal Enterprises for Rs. 4.5 lacs and later on debited the said account when there was sufficient balance in the account of the said firm, thereby causing loss of the intervening period has not been proved by the prosecution with regard to instrument/cheque bearing No. 401358.
118. With regard to the instrument No. 142584 for Rs. 2.5 lacs drawn by M/s P.D.Enterprises, same has been proved by PW1 which is ExPW1/12. The original is D66 in CC No. 05/15 and is exhibited as ExPW5/A31 in the said CC and same is D7 in this case.
119. The account opening form of M/s P.D.Enterprises CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 83 of 176 84 has been proved by PW3 as ExPW7/F, which was the partnership account opened through the partner Dilip Kumar Gupta, who is A2 in the present case and has been declared proclaimed offender. Statement of account pertaining to P.D.Enterprises i.e current account No. 712 running into 30 sheets has been duly proved by PW4 under the Bankers' Book of Evidence Act and the same is ExPW8/G in CC no. 05/15 and ExPW1/13 in this case.
120. GEQD expert has also given positive opinion with regard to the questioned signatures Q54 after comparison with the admitted signatures of said person vide opinion no. 4 in his report ExPW5/O1.
121. PW1 also deposed that the balance in the account of P.D.Enterprises was only Rs. 193783.69 on 02.07.1987. The above cheque was passed on 31.07.1987 by transfer entry and the same was credited to the office account GLCHR which head was debited on 02.07.87. Perusal of said statement of account reveals that there was no balance in the said account of M/s P.D.Enterprises when the said cheque CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 84 of 176 85 was presented for payment on 01.07.1987 by collecting bank and the cheque was only debited on 31.07.87, when there was sufficient balance in the account of M/s P.D.Enterprises.
122. Regarding the cheque/instrument No. 142583 which is ExPW1/14, the original instrument is D67 in CC No. 05/15 and D8 in this case. The said cheque has also been proved by PW1, who has also deposed after seeing the said cheque that the said cheque was drawn by M/s P.D.Enterprises and the same was presented to the branch through clearing on 02.07.1987 and there was no balance in the account which is clear from the statement of account. The said cheque was passed by A1 Branch Manager by debiting the office account GLCHR. Copy of the said cheque is ExPW1/14. The original is ExPW5/A32 in CC No. 05/15. He has deposed that balance in the account of P.D.Enterprises was only Rs. 193783.69 on 02.07.1987. The said cheque was passed on 31.07.87 by transfer entry and same was credited to the office account GLCHR which head was debited on CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 85 of 176 86 02.07.1987.
123. Perusal of the said instrument also reveals that the signatures of the drawer of the said cheque at Q55 was given a positive opinion on comparison with specimen handwriting by GEQD expert vide opinion no. 4 in his report vide ExPW5/O1 and the statement of account duly shows that there was no balance on the date of presentation of said cheque on 02.07.87 and the said cheque was debited later on, on 31.07.87.
124. Regarding another cheque/instrument No. 142585 of Rs. 1.5 lacs, same has also been proved by same witness i.e PW1 as ExPW1/15. The original is D67 in CC No. 05/15 and D9 in this case. The questioned signatures at point Q55 was also given positive opinion by GEQD expert vide opinion no. 4 in his report ExPW5/O1. PW1 has also deposed that the said cheque was passed by A1 by debiting office account GLCHR and the same was presented to their branch for clearing on 30.06.1987 and there was no balance in the account which is clear from the statement of account. The balance in the account of M/s CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 86 of 176 87 P.D.Enterprises was Rs. 93783.69. He also deposed that entry to this effect is at point D on ExPW1/13. The said cheque was passed on 31.07.1987 by transfer entry and same was credited to the office account GL CHR which head had been debited on 30.06.1987. The entry dated 31.07.87 is also reflected at point E on Ex PW1/13.
125. From the testimony of PW1 and perusal of statement of account ExPW1/13 it is clear that when the said cheque was presented for encashment on 30.06.1987, there was no balance in the account of firm, yet the said cheque was passed and the said account was only debited on 31.07.1987, when there was sufficient funds available in the account of the said firm.
126. Regarding the cheque/instrument No. 251166 D83 in CC No. 05/15 and D24 in this case and ExPW6/A in this case and original cheque is ExPW12/D in CC No. 05/15. Same is the cheque of Rs. 2 lacs. The said cheque was presented by Canara Bank for collection on 29.06.1987, the date of cheque is 28.07.1987. Statement of account pertaining to M/s Uma CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 87 of 176 88 Superinsulation is ExPW8/A dated 29.07.87. PW6 Dinesh Kumar Bhardwaj has deposed that the said cheque was issued by M/s Uma Superinsulation, a customer of Bank of Maharashtra for Rs. 2 lacs and there was no sufficient balance available in the party account so the same could not have been passed. However, these cheques were wrongfully retained in the bank instead of returning and the amount was debited to the office account CHR vide debit voucher dated 01.07.87.
127. Perusal of statement of account of M/s Uma Superinsulation ExPW8/A would show that there was no insufficient amount/balance in the said account on 29.06.1987 for the payment from the said account, yet the said cheque was passed instead of returning the same. It is also clearly evident from the statement of account that the account of the party was not debited with the said amount on said date.
128. Now adverting to the instrument bearing No. 135378 for Rs. 2 lacs. The original is D69 in CC No. 05/15 and D10 in the present case. Same has also been proved CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 88 of 176 89 by PW6. Though original is ExPW5/A35 in CC No. 05/15. The said cheque was dated 18.06.87 was also presented for payment in the clearing on 20.06.87 and the same was issued by Proprietor of G.K.Electronics, whose questioned signatures are at point Q61 and as per report ExPW5/O1 of GEQD expert PW5 vide opinion no. 5 was found to have been positive opinion, that the same was issued by the same person. Statement of account of G.K.Electronics is ExPW8/C which has been proved by PW4, pertaining to the current account No. 559 running into 65 sheets duly certified under Bankers' Book of Evidence Act.
129. Account opening form pertaining to the said account 559 is ExPW8/K, original in CC No. 05/15. (Since common evidence has been recorded in both the cases, as stated above, vide order sheet dated 10.05.2016, therefore same can be read in evidence).
130. The questioned signatures appearing at point Q62 as per GEQD expert PW5 was given positive opinion stating that the author of signatures at point Q62 matches with the specimen signature of the said CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 89 of 176 90 person vide opinion no. 5 in his report ExPW5/O1.
131. Perusal of statement of account would reveal that the said cheque was presented to the bank by the concerned bank for collection in Bank of Maharashtra, Mukherjee Nagar Branch, Delhi on 20.06.87.
132. Perusal of statement of account would reveal that on the date when the said cheque was presented for collection in the bank of Maharashtra there was insufficient balance in the said account for clearing the cheque, yet the cheque was not returned, but was kept in the branch and the payment was made to the presenting bank.
133. Regarding the instrument No. 135381, Same is D17 in CC No. 05/15 and D11 in this case and copy of the same has been proved by PW6 as ExPW6/E for Rs. 2.25 lacs, he stated that same was issued by G.K.Electronics in favour of S.K.Metal Company. The original cheque is ExPW5/A36 in CC No. 05/15. The statement of account would reveal that there was no sufficient balance in the statement of account of M/s G.K.Electronics ExPW8/C on the date of presentation CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 90 of 176 91 of cheque for collection, yet the said cheque was wrongfully retained in the branch, instead of returning and payment was made to the presenting bank. As per opinion of the handwriting expert the questioned signatures of author of the said cheque at point Q62 matches with the specimen handwriting of the said person given during investigation as per opinion no. 5 as per the report of GEQD expert ExPW5/O1.
134. Regarding the cheque/instrument No. 135381 for Rs.
1.25 lacs, the same is D12 in the present case and D71 in CC No. 05/15. The said cheque is ExPW6/F proved by PW6 issued by G.K.Electronics in favour of Star Aluminium. The said cheque was also presented for payment on 20.06.87 by Vijaya Bank, Kamla Nagar branch and perusal of statement of account ExPW8/C shows that there was no adequate balance in the account of G.K.Electronics ExPW8/C, as it appears that three instruments D69, D70 and D71 were presented for collection on the same day and there was no sufficient balance for passing of all the said three cheques on the same day, yet the said three CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 91 of 176 92 cheques were retained in the branch, instead of returning the same, and the cheques were passed and statement of account further reveals that same were not debited in the account of the party on 20.06.87, they were debited only on 28.06.1987.
135.Regarding the cheque No. 135397 for Rs.
6,17,303.25, same is D72 in CC No. 05/15 and D13 in the present case issued by M/s G.K.Electronics, current account No. 559 dated 17.07.87 presented on 18.07.87. Same has not been proved as per law by any of the witnesses in this case. Though common evidence has been recorded in this case alongwith CC No. 05/15.
136. Many of the instruments mentioned in the chargesheet were issued by accused persons Dalip Kumar Gupta, Gulshan Kumar Gupta and Devender Kumar Gupta (who are all Proclaimed Offenders). Therefore some of the instruments issued by them are not being discussed herein, as they are not relevant to fact in issue, till the time the said accused persons are caught and brought for trial.
CC No. 06/15
CBI Vs. Vinay Kr. Jain & Ors 92 of 176 93
137. Now adverting to the instrument No. 266431, original D60 in CC no. 05/15 and D1 in this case. Same is Ex PW1/7. Same has been proved by PW1, who has stated that the said cheque dated 02.02.88 for Rs. 4.25 lacs related to current account No. 802 of M/s Kamal Enterprises partners Mr. Praveen Kumar Gupta and Kamal Gupta. Copy of the same is ExPW1/7. The original cheque is ExPW5/A81 in CC No. 05/15. He has deposed that the said cheque was presented through clearing by Andhra Bank, Vishwas Nagar, Delhi on 04.02.88 as per the clearing stamp affixed in the front portion of the said cheque.
138. After seeing the statement of account pertaining to M/s Kamal Enterprises CC No. 802 which is ExPW1/8, he stated that there was no adequate balance in the said account on 04.02.88 and as such no debit could be allowed to the party when the said cheque was received by the bank, however A1 unauthorizedly allowed the debit of Rs. 4,25,000/ through office account GLCHR and passed the said cheque in his handwriting by mentioning ledger folio No. 3/446 and CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 93 of 176 94 the said bears his signatures at point A. The said cheque was debited to the account on 30.03.1988 and he made entry in his own handwriting ExPW1/8 at point A. V.K.Jain by allowing the unauthorized debit caused the loss of interest @ 20% p.a on the said amount for the period 04.02.88 to 29.03.88 which has not been recovered till date.
139. As discussed above, statement of account of M/s Kamal Enterprises is ExPW1/8 which has also been put to the accused in his statement U/s 313 Cr.P.C and his explanation was that the said statement of account is not correct and same is also not supported by the Certificate U/s 65B of Evidence Act. This objection has already been dealt with while discussing the admissibility to the statement of accounts and was discarded, therefore above needs no further deliberation.
140. Perusal of said statement of account reveals that there was no sufficient balance in the account of M/s Kamal Enterprises, when the cheque was received in the Bank of Maharashtra for collection, yet the said CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 94 of 176 95 cheque was kept and was not returned meaning thereby that the payment was made to the collecting bank and account of the party was also not debited and same was only debited on 30.03.1988. The witness has also identified the handwriting of A1 at point A in the said statement of account ExPW1/8. There is no cross examination on this aspect of this witness PW1 that the said entry at point A made by A1 as stated by this witness was not made by A1 in his handwriting. Even no suggestion has been given in this regard in the cross examination of PW1. The questioned handwriting at point Q45 was also sent for forensic evaluation to GEQD expert who after analyzing the specimen handwriting of A4 found that author of the said signatures at point Q45 was one and the same person, as per opinion no. 3 in his report ExPW5/O1.
141. Now adverting to instrument/cheque No. 397647 for Rs. 2,40,000/ D75 in CC No. 05/15 and D16 in this case, same is ExPW1/9. The account opening form and statement of account have already been CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 95 of 176 96 discussed, while discussing cheque(s) no. 401984 and 401985 issued by M/s Pragati Conductors. The said statement of account is ExPW1/2 and the account opening form is ExPW7/E and A4 is the proprietor of the same. A4 in his statement U/s 313 Cr.P.C never denied that the said account pertained to him. The said cheque is ExPW1/9 in this case and same is Ex PW5/A41 in CC No. 05/15. In this regard PW1 has deposed that the said cheque bearing No. 397647 dated 29.02.88 for Rs. 2,40,000/ related to current account No. 633 of M/s Pragati Conductors was presented through clearing by Andhra Bank, Vishwas Nagar, Delhi on 05.03.88, as per clearing stamp dated 02.03.88 affixed in front portion of the said cheque.
142. After seeing the statement of account ExPW8/G, as a whole (but specific page has been exhibited as Ex PW1/10), he stated that as per the said statement of account there was no adequate balance in the account of M/s Pragati Conductors on the said date and as such no debit could be allowed to the party, when the cheque was received by the bank. However, A1 CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 96 of 176 97 unauthorizedly allowed the debit of Rs. 4.25 lacs through office account GLCHR and passed the cheque in his handwriting by mentioning ledger folio no. 3/32. The cheque ExPW1/9 bears the handwriting of V.K.Jain at point A. The cheque was debited to the account on 30.03.88 and in this regard he made an entry in his own handwriting in the statement of account ExPW1/10.
143.To this positive assertion made by PW1 in his examination in chief that the said account of M/s Pragati Conductors of which A4 was the proprietor was only debited on 30.03.1986 in the handwriting of A1 has not been disputed in the cross examination by putting any question in this regard.
144. Perusal of statement of account shows that there was no sufficient balance in the account of M/s Pragati Conductors on 02.03.88, when the said cheque was presented for, yet the said cheque was not returned to the collecting bank and was kept in the branch and same was wrongly debited by A1 after almost 28 days by making false entry in his own handwriting. The CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 97 of 176 98 signatures appearing at point Q71 were also sent to GEQD expert who also opined after comparing the admitted signatures of A4 taken during the investigation that it was positive, written by one and the same person vide opinion no. 3 in his report Ex PW5/O1.
145. Now coming to the cheque/instrument No. 266442 D61 in original CC No. 05/15 and D12P2 in this case, same is ExPW1/11. PW1 in this regard has deposed that the said cheque was for Rs. 5,10,000/ relating to current account No. 802 of M/s Kamal Enterprises partners Mr. Praveen Kumar Gupta and Kamal Gupta. Copy of the cheque is ExPW1/11 was presented by Andhra Bank, Vishwas Nagar Branch,Delhi on 05.03.88, as per clearing stamp dated 02.03.88 affixed in front and back portion of the original cheque in CC No. 05/15 and after seeing the statement of account pertaining to current account No. 802 of Kamal Enterprises which is ExPW1/8, he stated that there was no adequate balance in the said account on 05.03.88 and as such no debit was allowed to the party CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 98 of 176 99 when the cheque was received by the bank. However, V.K.Jain had unauthorizedly allowed the debit of Rs. 5,10,000/ through office account GLCHR and passed the cheque in his handwriting by mentioning the ledger folio no. 3/29(wrongly written, it is infact 3/446) He also stated that the said cheque ExPW1/9 bears the handwriting of V.K.Jain at point A. The said cheque was finally debited to the account of 30.03.88 and in this regard he had made an entry in his own handwriting in the statement of account ExPW1/8 at point D which unauthorizedly caused the debit loss of interest @ 20% p.a for the period 05.03.88 to 29.03.88 which has not been recovered till date. The original statement of account is ExPW8/F D141 in CC No. 05/15 in which the relevant entries have been marked A & B, as discussed above.
146. Further statement of account of said firm would reveal that there was no adequate balance in the account of the party on 05.03.88, when the said cheque was presented for encashment, yet the said cheque was kept in the branch and was not returned to CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 99 of 176 100 the collecting bank and finally debited on 30.03.88 causing loss to the bank and that too in the handwriting of A1. To this there is no cross examination being carried out by Ld. Defence counsel that the said entry was not made in the handwriting of A1 and was made by some other bank clerk or any other person. PW1 should know the handwriting of A1, as he had worked with him at Mukherjee Nagar Branch and also seen him signing and writing during the course of his official duties.
147. The questioned signatures at point Q46 were also sent for opinion of GEQD expert for evaluation, vide opinion no. 3, he opined that author of Q46 matches with the specimen handwriting of A4 taken during the investigations that it was written by one and the same person. The said cheque is ExPW5/A82 in CC No. 05/15.
148. Now lastly with regard to the cheque instrument bearing No. 266443 for Rs. 2 lacs D62 in original CC No. 05/15 and D3 in this case, same is ExPW1/11A issued by M/s Kamal Enterprises in favour of M/s Om CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 100 of 176 101 Sons Wire Industries. PW1 has deposed that the said cheque was presented to their branch in clearing on 04.03.1988 and there was no balance. It is clear from statement of account that the said cheque was passed by A1 by debiting the office account of GLCHR and the original cheque is available in CC No.05/15. The balance in the account of M/s Kamal Enterprises was only Rs. 771.07 on 04.03.1988. The entry to this effect is at point C on ExPW1/8. The said cheque was passed on 30.03.1988 by transfer entry and the same was credited to the office account GLCHR which head was debited on 04.03.1988. The entry dated 30.03.1988 is reflected at point D on ExPW1/8.
149. The common thread running with all the above cheque/instrument(s) as discussed above shows that they were presented on particular date for collection in the bank of Maharashtra branch of which A1 was the manager as per procedure prevailing in the bank for clearing of cheque/instrument, if there was no sufficient balance in the account of the party issuing the cheque on the particular date the cheque is to be returned on CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 101 of 176 102 the same day by the paying branch to the collecting bank through clearing house. If the cheque is not returned by the paying branch through clearing house, then the cheque can be returned on the counter of the collecting bank on the next date before commencement of business hour, and if the cheque is not returned in any of the ways, as mentioned above, it is deemed to have been cleared/paid and the collection bank credited the amount of the cheque in the account of the party presenting the cheque and allows the withdrawal to the party.
150.In the present case it is evident that there was no balance in the account of the party issuing the cheque(s), when the said cheques were presented for encashment by the collecting branch, yet the said cheques were not returned and they were kept in the branch meaning thereby the collecting bank was free to credit the amount to the party presenting the cheque, as they would deem that since the said cheuqe had not been returned to them through the clearing house on the same day or on counter on the CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 102 of 176 103 next date. The said cheque must be deemed to have been passed by the paying branch, also deeming there was sufficient balance in the account of the party drawing the cheque/instrument, thereby allowing the withdrawal of money by the party presenting the cheque for encashment.
151. It is also evident from the above discussion that the said cheques were ultimately debited in the account of the party not on the date when they should have been i.e the date on which they have received for collection sent by collecting branch through clearing house, but on other dates when there was sufficient balance in the account of particular person/party for matching the cheque/instrument in question, thereby debiting the account of the party on the particular date, whereby causing loss of interest to the bank of Maharashtra, Mukherjee Nagar Branch, as no overdraft interest or any other interest was charged from the party/account holder for this.
152. Though PW1 and other witnesses have identified the signatures of A1 on almost all the instruments as CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 103 of 176 104 discussed above, as they were acquainted with his handwriting and signatures, but that in no way shows that A1 was only instrumental in passing the cheque(s) into the account of A4 and other parties, even though there was no balance in the respective account(s) without debiting the same on the particular day, when the same was sent by the collecting branch through clearing house for payment and thereafter debiting the same on later day, when there was sufficient balance available in the same account. As it has not been shown by the prosecution that A1 was solely responsible for passing the cheque. Since in the banking hierarchy there must be so many persons involved in the said process of getting the cheque cleared i.e the clerk receiving the cheque from clearing house as per the RBI Schedule, thereafter making the relevant entries in the particular register and thereafter matching the signatures of the party drawing the cheque and so on.
153.Therefore it cannot be conclusively said that the signatures of A1 was there on all the CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 104 of 176 105 instruments/cheque(s) as the sole person responsible for passing the cheque/instrument(s), as there must be many other person(s) involved in the said process who must have been preparing the day book and making the relevant entries in the ledgers of the bank, after comparing signatures and so on. Therefore it cannot be conclusively inferred that A1 was the sole person responsible for passing of all the cheques in question, despite A4 and other account holders(who are proclaimed offenders) having no sufficient balance in their account and later on when there was sufficient balance available in their account, their accounts were debited on much later date, when the same was done, no interest for the said period was charged as per banking procedure.
154. However at the same time, as discussed above, with regard to instrument No. 266431 which is ExPW1/7 D60 in CC No. 05/15 and D1 in this case. PW1 has deposed that the said cheque was presented through clearing by Andhra Bank, Vishwas Nagar, Delhi on 04.02.88 and as per statement of account there was CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 105 of 176 106 no sufficient balance in the account on 04.02.88. He after pursuing the statement of account ExPW1/8 pertaining to current A/c no. 802 of M/s Kamal Enterprises stated as per statement of account there was no adequate balance in the said account on 04.02.88 and as such no debit can be allowed to the party when the cheque was received by the bank.
155.However, accused V.K.Jain had unauthorizedly allowed the debit of Rs. 4,25,000/ through office account GLCHR and passed the cheque in his handwriting by mentioning ledger folio No. 3/446. He identified the signatures of A1 at point A and stated that the said cheque was debited to the account on 30.03.88 and Mr. V.K.Jain made entry in his own handwriting in the statement of account ExPW1/8 at point A, thereby allowed the unauthorized debit causing loss of interest @ 20% p.a for the period 04.02.88 to 29.03.88. Statement of account is Ex PW1/8 in this case and original ExPW8/F in CC No. 05/15.
156. As discussed above, there is no cross examination CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 106 of 176 107 on this aspect by Ld. Defence counsel that the said entry at point A was not made by the accused and PW1 should know his handwriting as he had worked with him during the course of his official duties in the bank. Ld. Defence counsel has argued that the said entry was not sent to GEQD expert for comparison and the testimony of PW1 is not sufficient to prove that the said entry was made by PW1 only in his own handwriting. Therefore without corroboration it cannot be said that the said entry was indeed made by PW1 only. However, the said argument is without any substance, as by virtue of Section 47 of Evidence Act when the court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person is the relevant fact and in explanation to said section, it is stated that the person is said to be acquainted with the handwriting of another person, when he has seen him writing and signing in the ordinary course of business.
157.In the present case, PW1 had worked with A1 as A1 CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 107 of 176 108 was working as a Branch Manager, where PW1 was also working, therefore during the ordinary course of business the documents purportedly signed or written by A1 must have been submitted or received by him ie. PW1 therefore the opinion of PW1 that entry at point A was made by A1 is a relevant fact, especially when no cross examination has been carried out on this aspect by Ld. Defence counsel. It is not that in every case the opinion of expert is to be taken, the person who usually sees the another person signing and writing during the course of his duties can be also be said to be an expert in the sense, he also knows the habit of the person how he writes or puts his signature and various peculiarities of the same having worked with him day and day out. Therefore this objection has no force.
158. PW1 has also deposed with regard to the cheque bearing No.397647 original in D75, D16 in this case and ExPW1/9 in this case that the said cheque dated 29.02.88 was presented for clearing on 02.03.88 and after seeing the statement of account of M/s Pragati CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 108 of 176 109 Conductors ExPW1/10 stated that there was no balance in the account on 05.03.88 and as such debit could not be allowed. However, A1 had unauthorizedly allowed the debit of Rs. 4.25 lacs through office account GLCHR and passed the cheque in his handwriting by mentioning ledger folio no. 3/32. The said cheque bears his signatures at point A. The said cheque was debited to the account on 30.03.88 and in this regard he made the entry in his own handwriting in the statement of account ExPW1/10 at point A. The original statement of account is ExPW8/H in CC No. 05/15. To this also there is no cross examination and he also deposed that there was a loss of interest @ 20% p.a for the period 05.03.88 to 29.03.88.
159. Now lastly with regard to cheque No. 266442 D61 in original CC No. 05/15 and D2 in this case ExPW1/11 which was also issued by M/s Kamal Enterprises, he has also deposed that the said current account No. 802 dated 28.02.88 of M/s Kamal Enterprises of which A4 and Kamal Gupta were the partners was presented on 05.03.88 as per clearing stamp dated 09.03.88 and CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 109 of 176 110 after seeing the statement of account No. 802 of M/s Kamal Enterprises ExPW1/8, he stated that there was no sufficient balance in the said account on 05.03.88, as such no no debit could be allowed to the party when the cheque was received by the bank. However, A1 unauthorizedly allowed debit of Rs. 5,10,000/ through office A/c GLCHR and passed the cheque in his handwriting by mentioning ledger folio no. 3/32 and signatures appearing at point A. The said cheque was debited ultimately in the account of the party on 30.03.88 and in this regard he made an entry in his own handwriting in the statement of account ExPW1/8 at point B. The original statement of account is Ex PW8/H in CC No. 05/15. This unauthorized debit caused a loss @ 20% p.a for the period 05.03.88 to 29.03.88.
160. As discussed above, the said entry at point B has been proved to be in the handwriting of A1. To this there is no cross examination and PW1 was the best person to know the handwriting and signatures of A1, as he would have been working day and day out with CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 110 of 176 111 A1 as Branch Manager. Therefore he would be fully conversant with how he writes and signs. These three entries show that A1 was instrumental in atleast passing the three cheques unauthorizedly, when there was no balance in the account of the party, when the said cheques were presented by Paying Branch through clearing house to the Bank of Maharashtra, Mukherjee Nagar Branch and since there was no sufficient balance in the account of the drawer of the cheque. The said cheque should have been returned to the Paying branch through clearing house either on the same day or the next day.
161.Since it was not done, it gave an impression as per Banking rules and procedure that the said cheque has deemed to have been passed or accepted, therefore the paying/collecting branch was fully justified in assuming that the said cheques have been passed and whereby crediting the account of the party presenting the said cheques. Therefore these three cheques clearly prove that the said cheques were CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 111 of 176 112 cleared by A1 only, as he made the necessary endorsement on the said cheques by mentioning folio numbers in his handwriting and also making the corresponding entries in the Statement of Account of M/s Kamal Enterprises as well as M/s Pragati Conductors, thereby falsifying the statement(s) of account of M/s Kamal Enterprises as well as M/s Pragati Conductors.
CHR/VOUCHER
162. The procedure regarding clearing house receivable(CHR) has been explained by PW1, as he has stated that if there is no sufficient balance in the account in which the cheque is presented for payment, bank debits through the office account GLCHR, while returning the cheque. On receipt of suitable claim from the collecting bank who has already received the money through clearing house, while presenting the cheque, the GLCHR account is adjusted next day. In case of counter returns the money is received from the collecting bank directly by pay order which may taken CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 112 of 176 113 maximum of 7 days. Similarly PW2 has stated that CHR is Clearing House Receivable Account maintained at a branch of Inward/Outward clearing sent from the branch. This is an office account and no entry pertaining to any customer account is made in this account. This account is not be used for debiting any cheque received in the branch for clearing. The cheques are debited to the respective account holder's account in their account. In case of insufficient balance the cheque presented in clearing is returned back to the Presenting Bank with a reason memo stating that the drawer does not have the sufficient fund to honour the cheque in question in the account. Under no circumstances, cheque is passed by debiting this office account i.e CHR account.
163.The process how the cheques are cleared through clearing house in the banking business can be illustrated as under:
CC No. 06/15
CBI Vs. Vinay Kr. Jain & Ors 113 of 176 Clearing house 114
Brief illustration about working of clearing house process of cheques Cheques sent cheques presenting Exchange and to drawee processing bank for clearing Presenting service Drawee bank branch service branch Unpaid cheques Cheques deposited Cheques Unpaid by sorted sent to cheques customers branches returned Unpaid Settlement cheques Bank Credit and realization Passing of to customers account cheques presenting bank branches Drawee/payers bank branch CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 114 of 176 115
164. PW1 after seeing the instrument i.e cheque No. 401984 dated 12.04.89 ExPW2/O1 in CC No. 05/15 D76 favouring Paper Conductor conductors for Rs. 5 lacs drawn by Pragati Conductors(A/c No. 633) stated that same was presented for payment through clearing dated 13.04.89. The said cheque had been debited on 27.06.89 instead of 13.04.89 in the account of M/s Pragati Conductos as per statement of account Ex PW1/2.
165.Similarly, after seeing the cheque No. 401985 dated 12.04.89 ExPW2/O2 in CC No. 05/15 D77, it was stated that the said cheque was favouring Paper Conductors for Rs. 2.5 lacs drawn by Pragati Conductors(A/c No. 633) presented for payment through clearing dated 13.04.1989. The said cheque had been debited on 27.06.89 instead of 13.04.89 in the account of M/s Pragati Conductor as per statement of account ExPW1/3.
166. Similarly after seeing cheque No. 399905 dated 12.04.89 ExPW2/O3 in CC No. 05/15 D81 favouring M/s Kansal Metal for Rs. 7.5 lacs drawn by Strip CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 115 of 176 116 India(A/c No. 5085) presented for payment through clearing dated 13.04.89. The said cheque has been debited on 23.06.89 instead of 13.04.89 in the account of M/s Strip India as per statement of account Ex PW1/6. He deposed that all the three cheques were not debited in the respective accounts on 13.04.89. However, on the same day this amount has been debited in CHR account by altering the original figure from Rs. 25,06,718.32 to Rs. 40,06,718.32. The said voucher was prepared in the handwriting of A1. The same is ExPW2/O4. Debit voucher is dated 13.04.89 which is mentioned on the back of ExPW2/O4 at point A. No separate voucher was prepared for the same.
167. Perusal of statement of account of M/s Pragati Conductors of which A4 was the proprietor reveals that there was only an balance amount of Rs. 1516.36 on the date when the said cheques were received in the said branch of Bank of Maharashtra for collection i.e in respect of the cheque(s) bearing No. 401984 and 401985 stated above. The account of the party CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 116 of 176 117 was not debited on the said date, but the said cheques were debited only on 27.06.1989. Similarly, after looking into the statement of account of M/s Strip India ExPW1/6 it is revealed that there was a negative balance of Rs. (97670.61) when the said cheque was received for clearing in the Bank of Maharashtra branch. On 13.04.1989 when there was no balance in the account of the party.
168.This financial jugglery thus carried to pass these cheques has been thus explained, as on the said date A1 instead of debiting the account of the party debited the CHR account by altering the figure of Rs. 25,06,718.32 to Rs. 40,06,718.32, which is Ex PW2/O4 and which has categorically stated by PW2 to be in the handwriting of A1. PW2 has also stated that the CHR account is an office account and no entry pertaining to any customer account can be made in this account. This account cannot be used for debiting any cheuque received in the branch for clearing. The cheques are debited to the respective account holder's account in the bank. In case of insufficient balance the CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 117 of 176 118 cheques presented in clearing is returned back to the presenting bank with the memo and under no circumstances cheque is passed by debiting this office account i.e CHR account.
169.Ld. counsel for the accused has argued that the said handwriting had not been sent to GEQD expert who opined that the handwriting on the said CHR voucher ExPW2/O4 was that of A1, or that there was any alteration in the figure made by A1. In the absence of any opinion of GEQD expert, it cannot be said that it was A1 who had made the said alteration. Though admittedly the said CHR voucher was not sent for GEQD expert opinion, as has been done with regard to other instruments, but as discussed above, PW2 had worked with A1 in the same bank, therefore he would know the handwriting and signatures of A1 having worked with him day and day out and as per Section 47 of Evidence Act, when the court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person is the relevant fact CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 118 of 176 119 and in explanation to Section 47 Evidence Act, it is stated that the person is said to be acquainted with the handwriting of another person, when he has seen him writing and signing during the course of official business.
170.Therefore handwriting of a person can be either proved by handwriting expert or by only other person who has seen the other person writing and signing during the course of official dealings. For example in the court of law the Steno or Reader would be fully acquainted with handwriting and signatures of Judge as they see him writing and signing every day.
171.In the present case, PW2 had worked with A1 for the long time in the said branch, therefore he would know the handwriting and signatures of A1, further no cross examination has also been carried out by Ld. Defence counsel asking him or putting any suggestion that the said alteration of the voucher has not been made by A1 in his handwriting. In any case it is not the defence version that PW2 had any prior animosity with A1. Consequently he has been falsely implicated in this CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 119 of 176 120 case.
172.Therefore the modus operandi which was adopted by A1 in passing the above three cheques is crystal clear, who despite respective parties not having sufficient balance in their respective accounts was debiting CHR account of bank, instead of debiting the respective accounts of the party which cannot be done, as it is only the clearing house receivable account maintained with the branch for adjustment of internal/external clearing sent from the branch and under no circumstances, individual cheques can be passed by debiting this office account, nor any entry pertaining to any customer can be made in this account for clearing the cheques.
173.Same modus operandi carried out by A1 is also revealed from the testimony of PW6 Dinesh Kumar Bhardwaj who after seeing the cheque No. 143584 D66 in CC No. 05/15 also ExPW6/A31 has stated that same cheque has been issued by M/s P.D.Enterprises, a customer of Bank of Maharashtra for Rs. 2.5 lacs favouring M/s Om Sons Pvt. Ltd. CC No. 06/15
CBI Vs. Vinay Kr. Jain & Ors 120 of 176 121 Similarly, he after seeing the cheque No. 142583 D67 and ExPW5/A32 in CC No. 05/15 stated that same was issued by M/s P.D.Enterprises, a customer of Bank of Maharashtra, Mukherjee Nagar Branch for Rs. 2.5 lacs favouring M/s Om Sons Pvt. Ltd., as also he deposed after seeing cheque no. 142585 D68 and Ex PW5/A33 in CC No. 05/15 that the same was issued by M/s P.D.Enterprises, a customer Bank of Maharashtra, Mukherjee Nagar Branch for Rs. 2.5 lacs favouring M/s Shakti Cables(wrongly typed, as it is infact 1.5 lacs).
174. Lastly, he spoke after seeing cheque No. 251166 D83 ExPW2/D in CC No. 05/15 issued by M/s Uma Superinsulation, a customer of Bank of Maharashtra, Mukherjee Nagar Branch for Rs. 2 lacs favouring M/s Super Industries. He further stated that all these four cheques amounted to Rs. 8.5 lacs were received in clearing on 01.07.87 and there was no sufficient balance available in the party's account, therefore same could not have been passed.
175.However, these cheques were wrongfully retained in CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 121 of 176 122 the bank instead of returning the same and the amount was debited to the office account CHR vide debit voucher dated 01.07.87. Same is ExPW6/B(original has been kept in CC No. 05.15 with exhibit mark PW12/E). Parties continued to enjoy the wrongful bank funds for 30 days without paying any interest and subsequently when these parties arranged funds, the entry was reversed on 31.07.87 vide credit voucher ExPW6/C(original has been kept in CC no. 05/15 which is marked as ExPW12/F). The wrongful debit of Rs. 8,50,000/ on 01.07.87 was done by A1, the then Branch Manager and the respective cheques were kept by him wrongfully without returning the same to the clearing house immediately.
176.The questioned handwriting mark Q131 on the debit voucher ExPW6/B(original ExPW12/E in CC No. 05/15) were sent to GEQD expert and also credit voucher ExPW6/C(Original ExPW12/F in CC No. 05/15) having mark Q133, same was sent for forensic opinion of GEQD expert, who opined vide opinion No. 2 in his report ExPW5/O1 after comparing the CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 122 of 176 123 admitted handwriting and signatures of A1 with the said questioned signatures appearing at point Q131 and Q133 that the author of the said handwriting was one and the same person. Nothing has come out in his cross examination which could show otherwise.
177. This modus operandi has been further elaborated by PW6 after seeing the cheque No. 135378 D69(original kept in CC no. 05/15 ExPW5/A35) for an amount of Rs. 2 lacs issued by M/s G.K.Electronics in favour of Sanjeev Metals and also deposed regarding cheque No. 135379 ExPW6/E D70 and ExPW5/A36 in CC No. 05/15 that the said cheque of Rs. 2.25 lacs was issued by G.K.Electronics in favour of S.K.Metal Company. Further after seeing the cheque No. 135381ExPW6/F(original in CC No. 05/15 Ex PW5/A37) for Rs. 1.25 lacs was issued by M/s G.K.Electronics in favour of Star Aluminium Corporation.
178.He also deposed that the cheque ExPW6/D was issued on 18.06.87, cheque ExPW6/E and ExPW6/F were issued on 19.06.87. He after seeing the CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 123 of 176 124 photocopy of debit voucher dated 20.06.87 for Rs. 5.5 lacs ExPW6/G(original ExPW12/G in CC No. 05/15) stated that it was in respect of cheque No(s). 135378, 135379, 135381. This amount was debited to GLCHR II account.
179.He also stated that these cheques do not appear to have been debited on 20.06.87 as per photocopy of statement of account of M/s G.K.Electronics (which is ExPW8/C in CC No. 05/15). These three cheques were debited to M/s G.K.Electronics account on 28.06.87 and CHR account was credited by Rs. 5.5 lacs as per photocopy of credit voucher Ex PW6/H(original kept in CC No. 05/15 ExPW12/H) by A1.
180. ExPW6/G was sent to GEQD expert vide questioned document Q127 for comparison of handwriting/author of the said document. Similarly, Ex PW6/H was also sent to GEQD expert vide questioned document Q129 for comparing the handwriting of the said voucher. The GEQD expert vide opinion No. 2 after comparing the admitted signatures and CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 124 of 176 125 handwriting of A1 with those appearing on these debit and credit vouchers has stated that these are written by one and the same person.
181.No contrary opinion has been brought on the record by defence, nor the testimony of PW5 has been assailed to such extent to diminish his credibility as discussed above. Even at the risk of repetition CHR account which is clearing house receivable account is maintained at the branch for inward and outward clearing sent from the branch, which is an office account and no entry pertaining to any customer is made in this account. This account is not to be used for debiting any of the cheque received in the branch. The cheques are to be debited in the respective accounts of the parties. In case of insufficient balance the cheques are to be returned to the presenting bank with a reasoned memo. This account is not be used for debiting any cheque received in the branch for clearing. Under no circumstances, cheque is passed by debiting this office account i.e. CHR Account.
182.Therefore prosecution has been able to prove that CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 125 of 176 126 this modus operandi was adopted by A1 in passing the above cheque(s) of the parties, despite said parties not having sufficient funds in their respective account(s), when the cheques were received for collection in the branch, and the cheque of the parties were passed by adopting financial jugglery by debiting the CHR office account of the bank which account is solely maintained for internal purposes of banking for inward/outward clearing and cannot be used for clearing individual cheque of the party under any circumstances and later on when the accounts of the parties were flush with funds, the said cheques which were debited in the account of the party and the corresponding CHR account entry was reversed by crediting the same, by the same amount and thereby causing huge loss to the bank of the intervening period of interest without any authority.
183.Ld defence counsel has argued that this kind of evidence was not sufficient to fix criminal liability of A1, as neither RBI schedule has been produced or proved, nor the cheque register regarding CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 126 of 176 127 receipt/return of cheques have been produced, nor cash book, general register, transfer scroll, cash scroll, CHR register and CHR supplement list have been produced, nor the parties to whom the payment were credited have been examined, nor the bank official examined for the said purpose i.e branches from where the cheques were sent for collection. He has argued that these documents would have revealed that A1 was not culpable would have proved his innocence.
184.In this regard he has relied upon the testimonies of various witnesses, as discussed above. For instance it has come in the cross examination of PW1 that in every branch there is a register regarding profit & loss, voucher register, supplementary and ledger register are maintained by the bank staff. PW1 has also admitted that in a bank transfer scroll is prepared. He has also admitted that it was correct that whenever cheques were presented for payment, the clearing house sends one schedule alongwith the cheque. Similarly PW1 R.K.Pahuja in his cross examination in CC No. 05/15(where he has also been examined as CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 127 of 176 128 PW1) has also stated that he does not remember, whether he had filed banking procedure rules regarding opening of letter of credits, operation of clearing house/clearing house system, operation of general ledger nominal account, CHR clearing house receivable, nor he remembers, whether he had filed banking procedure rules regarding operation of clearing house/clearing house system of exchange/clearing/collection of cheques through clearing house system operated by RBI, payment of cheques at various local bank. He also does not remember, whether banking procedure rule in printed form were filled before this court in respect of operation of General ledger/nominal account, clearing house receivable , when there is no sufficient balance in the account in which cheque is presented for payment. He also admitted that in respect of various cheques there is no RBI schedule available.
185.Similarly, PW2 has stated in his cross examination that the transactions were subjected to internal as well as external audit and that various letters of CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 128 of 176 129 appreciation were given to A1 during his tenure as Branch Manager, Dr. Mukherjee Nagar Branch. Similarly, PW2 has also admitted that it is correct that the supervisory officers posted in the regional office Bank of Maharashtra, Karol Bagh have been periodically inspecting the branches of Bank of Maharashtra situated at Delhi as well as other regions. PW2 N.M.Lokhande who has also been examined as PW13 in CC No. 05/15 (as common evidence has been recorded in both the cases) in his cross examination stated that he has not been shown any supplement statement in respect of details of the cheques and vouchers regarding the day transaction of the bank, nor CBI officer seized any supplement statement in his presence in this case. These supplement statements were being kept in the branch office of Dr. Mukherjee Nagar. Some registers were being manually maintained. He also admitted that transfer scrolls were also used to be tallied at the end of the day during the period of this case. Similarly he admitted it is also correct that clearing scroll were also CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 129 of 176 130 used to be tallied at the end of the day during the period of this case. During his tenure in the branch, it never came to his notice any difference in tallying cash, clearing scroll and transfer regarding this branch. He also stated that it was correct that duties assigned to the employees are subject to rotation periodically and it was prevailing practice in all the branches of the bank. An office order register is maintained regarding the allocation of duties to different employees for discharging official duties. It is also prevailing practice of the branch of the bank. He also admitted that it is correct that if an entry in respect of pay order or any other transaction is made under the wrong head such as CHR , then the same can be rectified by making entry under the correct head as well as in the relevant register by passing a voucher in this respect. It is also correct that entry of the rectification of voucher is made in the general register of the branch of the bank and he had no knowledge, whether any kind of letter or intimation was sent by the zonal office to the Zonal office Dr. Mukherjee Nagar Branch that any head of CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 130 of 176 131 balancing was not tallying including CHR and bills payable. He did not ask CBI officers to find out from the zonal office of the bank in order to find out from the zonal office of the bank, if there was any difference in any head of general ledger and that PW3 and PW4 have admitted that account opening form were not opened in their presence, nor statement of account were prepared by them and PW6 similarly has admitted that no complaint was lodged against A1 during his tenure, nor he had received any complaint against him.
186.He has also attacked the testimony of GEQD expert PW5, on the ground that PW5 has admitted in his cross examination, science of handwriting identification is a progressive science and that PW5 was not present at the time of examination of documents by Mr. N.C.Sood, nor he had taken the photographs of the questioned, as well as admitted writings, therefore he has flayed the conclusion of PW5 being unreliable, having considered the said arguments same are found to be untenable, as PW5 has also stated that he is in CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 131 of 176 132 this profession for last 33 years, and had independently examined thousand of documents expressing opinion on them had also appeared as expert witness in various courts of law. He gave his opinon after thorough examination and Mr. N.C.Sood had also independently examined all the documents and came to the same conclusion as of himself. Since both the experts reached the same conclusion it was not necessary to examine both, as it would have only multiplied the testimonies of witnesses with regard to the same report. In any case PW5 had no axe to grind against A1, if A1 was peeved by the opinion of PW5 then what stopped him from hiring his own credible expert of same stature to show that findings given by PW5 were perverse.
187.Relying upon these testimonies, Ld. defence counsel has argued that A1 had received various letters of appreciation during his tenure as Branch Manager from the higher authorities of Bank of Maharashtra and no illegality was ever detected during internal audit or during the periodical inspection by Regional Office of CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 132 of 176 133 Bank of Maharashtra and that he was not responsible for maintaining every register of the branch and there were so many checks and balances in the bank that it was practically impossible that such irregularities as alleged by the prosecution could go undetected.
188.The said argument of Ld. counsel for A1 though appears to be attractive, but same is bereft of any merit, as merely because A1 was getting appreciation letters from his top management does not in any way mitigate the evidence lead on record against him. Further even if these irregularities had been glossed over during the internal as well as external audit carried out in the branch then it speaks volumes about the efficacy of such audit(s), as cheques were being passed without sufficient balance in the account of party by debiting CHR account and later on crediting the same when the account of the parties were flush with the funds merely because same could not be detected by the internal as well as external audit, does not in any way dilute the prosecution case against A1.
189. It may be in order to further corroborate the evidence CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 133 of 176 134 already lead on record by the prosecution and to make it more stronger on the scale(s) of probability, the prosecution would have well served to lead additional corroborative piece of evidence in the shape of RBI schedule. The cheque regarding receipt/return of the cheque, general voucher, transfer scroll, cash scroll, CHR register and CHR Supplement and also prosecution would have made its case more stronger by examining the parties to whom the payment were credited including the bank officials who had sent the cheques for collection, but even bereft of this kind of corroborative evidence, it has to be seen whether prosecution being deprived of these corroborative pieces of evidence has still being able to prove its case beyond reasonable doubt or not. The same can only be done by appreciation of evidence as discussed above. It is not the quantity of evidence, but quality of same which is important to make out the case. It may be that IO could not collect the additional corroborative piece of evidence which would have make the case of the prosecution water tight against accused persons, CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 134 of 176 135 but it is to be seen, whether prosecution from the available evidence has been able to make out the case for which accused persons have been charged or not.
190.Regarding contention of Ld. Counsel for accused persons that complainant in this case i.e Mr. R.B.Rene has not been examined which is fatal to the case of prosecution. The said non examination of complainant in this case to my mind is not fatal to this case, as the complainant Mr. Rane cannot be said to be victim or the repository of the facts of the case, he had made the complaint on the basis of series of acts allegedly committed by A1 in conspiracy with various accused persons including A4. It is not that he was the eye witness to any incident or transaction, but was the informant that such a scam had taken in their bank based on overwhelming documentary evidence giving rise to a cognizable offence(s), therefore his non examination is not fatal to this case.
191.As discussed in the previous ingredient while discussing the testimony of PW1 with regard to the instruments i.e cheque bearing no. 266431 for Rs. 4.25 CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 135 of 176 136 lacs issued by Kamal Enterprises of which A4 was one of the partner. Copy of the cheque is Ex PW1/7(original D60) and also ExPW5/A81 in CC No. 05/15 and also with regard to another cheque No. 397647 dated 29.02.88 for Rs. 2.4 lacs relating to the current account No. 633 of M/s Pragati Enterprises. Copy of which is ExPW1/9(original in CC No 05/15) D75 ExPW5/A41, as also with regard to cheque No. 266442 D61 original ExPW5/A82 and ExPW1/9 in this case.
192.PW1 has also stated after seeing statement of account of M/s Kamal Enterprises, M/s Pragati Conductors and again M/s Kamal Enterprises that when the said cheques were presented for encashment by the collecting bank then there was no sufficient balance in the account of the said firm i.e when cheques were received for collection, the accused passed the said cheques in his handwriting by mentioning folio nos on the same i.e folio No. 3/446, 3/32 and the said cheques were only debited in the account on 30.03.88 and A1 made corresponding CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 136 of 176 137 entries in his own handwriting in the statement of accounts of the said firms ExPW1/8 and ExPW1/10. In these circumstances, since the said three entries pertaining to the said cheques have been clearly proved to be in the handwriting of A1, therefore prosecution has been able to prove these three instances whereby the accused fraudulently and dishonestly in order to deceive the bank caused wrongful gain to A4 and other account holders and wrongful loss to the bank, while deceiving the bank, which the bank would not have done otherwise, as the said parties were not entitled to use the funds of the bank without paying the interest thereof.
193.The prosecution has also proved thereby that A1 had made corresponding entries in the ledger account of Bank of Maharashtra, Mukherjee Nagar Branch, which were also falsified by the accused with intent to defraud, in order to cause wrongful gain to the drawer of the cheque(s) and wrongful loss to the bank, in order that such customers escape the said liability of paying the interest without having balance in their CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 137 of 176 138 accounts on the day of presentation of their cheques, himself in his own handwriting falsified the account(s) of the bank, which were in his possession.
194.As discussed above, the accused made alteration in the amount of the CHR voucher ExPW2/O4 thereby altering the figure of Rs. 25 to 40 lacs. Therefore the same would be making a false documents within the meaning of Section 464 of IPC, as the same had been done without any authority from the bank dishonestly and fraudulently in order to favour A4 and other accused persons(who are proclaimed offenders).
195. This fudging of CHR account has already been discussed above in the testimony of PW6 Dinesh Kumar Bhardwaj, who has deposed regarding the cheque No. 143584 (D66 in CC No. 05/15) stated that the said cheque has been issued by M/s P.D.Enterprises for Rs. 2.5 lacs. Similarly, he had deposed regarding cheque No. 142583 (D67 in CC no. 05/15) stated that same was issued by M/s P.D.Enterprises for Rs. 2.5 lacs and also deposed regarding cheque no. 142585 (D68 in CC No.05/15) CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 138 of 176 139 that the same was issued by M/s P.D.Enterprises for Rs. 2.5 lacs(wrongly typed, as it is infact of 1.5 lacs).
196. Lastly, he spoke regarding cheque No. 251166 (D83 in CC No. 05/15) issued by M/s Uma Superinsulation, a customer of Bank of Maharashtra, Mukherjee Nagar Branch for Rs. 2 lacs. He further stated that all these four cheques amounted to Rs. 8.5 lacs were received in clearing on 01.07.87, when there was no sufficient balance available in the party's account, therefore same could not have been passed. However, these cheques were wrongfully retained in the bank instead of returning the same and the amount was debited to the office account CHR vide debit voucher dated 01.07.87. Same is ExPW6/B(original in CC No. 05/15) and parties continued to enjoy the wrongful bank funds for 30 days without paying any interest and subsequently when these parties arranged funds, the entry was reversed on 31.07.87 vide credit voucher ExPW6/C(original has been kept in CC no. 05/15). He also deposed that the wrongful debit of Rs. 8,50,000/ on 01.07.87 was done by A1, the then Branch CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 139 of 176 140 Manager and the respective cheques were kept by him wrongfully without returning the same to the clearing house immediately.
197.The testimony of PW6 was corroborated by the handwriting expert PW5 with the questioned handwriting at Mark Q131 and Mark Q133 on the said CHR debit and credit voucher clearly matched with the specimen handwriting and signatures of A1, as he was found to be the author of the same.
198.This modus operandi for debiting CHR account by A1 has been further elaborated by PW6, who deposed after seeing cheque No. 135378 (D69 in CC No. 05/15) for Rs. 2 lacs and cheque No. 135379(D70 in CC No. 05/15) for Rs. 2.25 lacs and another cheque 135381(D71 in CC No. 05/15) for Rs. 1.25 lacs issued by M/s G.M.Electronics in favour of different parties. He deposed that the said cheques were issued on 18.06.87 and 19.06.87 respectively. He after seeing the photocopy of debit voucher dated 20.06.87 for Rs. 5.5 lacs ExPW6/G(original in CC No. 05/15) stated that it was in respect of cheque Nos. 135378, 135379, CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 140 of 176 141 135381. This amount was debited to G.L CHRII account. He also stated that these cheques do not appear to have been debited on 20.06.87 as per the statement of account of M/s G.K.Electronics which is ExPW8/C in CC No. 05/15 and these cheques were only debited to M/s G.K.Electronics account on 28.06.87 and the CHR account was credited on the same day by Rs. 5.5 lacs as per copy of the credit voucher is ExPW6/H(original ExPW12/H kept in CC No. 05/15).
199.The testimony of PW6 with regard to these cheques/instruments is corroborated by the testimony of PW5 the handwriting expert who has also opined after comparing the questioned handwriting and signatures on these voucher at point Q127 and Q129 that the same were written by one and the same person i.e A1 vide opinion no. 2 ExPW5/O1.
200. Therefore prosecution has been able to prove that this modus operandi of debiting the CHR account of the bank which is only an office account for adjustment of inward/outward clearing sent from the branch in CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 141 of 176 142 which no entry pertaining to any customer can be made under any circumstances. Yet A1 with the intention to defraud the bank falsified the accounts of the bank by making false entry in CHR account by debiting the cheque amount of the party in the CHR account, despite parties not having any sufficient balance in their respective account for passing the said cheque. A1 with the intention to defraud the bank later on when the parties had sufficient funds in their account(s) reversed the said entry by crediting the CHR account which he had earlier debited to reconcile the CHR account and debiting the respective account of the party on much later date, thereby falsifying the account books of the bank which were in his possession.
201.The prosecution has also been able to prove by above cited instances, that A1 fraudulently and dishonestly in order to deceive the bank, caused wrongful gain to A4 and other account holder and wrongful loss to the bank while deceiving the bank which bank would not have done otherwise i.e passed CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 142 of 176 143 the cheques of them without having sufficient balance in said accounts, as the said parties were not entitled to use the funds of the bank without paying interest thereon. Therefore offence U/s 420 IPC is clearly made out. Prosecution has also been able to make out a case U/s 418 IPC against A1, as he cheated the bank with complete knowledge that he is likely to cause loss to bank, whose interest in the banking transactions to which the cheating relates, he was bound by contract i.e contract of employment being Manager of Bank, also in such fiduciary capacity, he was bound to protect which he did not, despite being so bound.
202. This modus operandi of debiting the CHR account of the bank which is only an office account for adjustment of inward/outward clearing sent from branch in which no entry pertaining to any customer can be made under any circumstances and no cheque can be passed by debiting the account accused still debited cheques in the CHR account of the bank is against all the established banking norms, it is also apparent that A1 retained the said cheques with the bank instead of CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 143 of 176 144 returning the same, as the parties had no sufficient balance in their account on the particular day when the said cheques were received for collection/payment by the collecting bank and thereafter when the accounts of the respective parties were flush with the funds, accused credited the CHR account and on the same day also debited the said cheques in the actual account of the parties, thereby causing loss to the bank of interest during the intervening period without any authority from anyone.
203.The main business of any bank is to receive deposits from the public and to lend the said funds at interest to the customers and the main banking income is the difference of interest i.e arbitrage which the bank earns from the said difference of borrowing and lending.
204.Accused in disregard to all established norms debited the CHR account of the bank and wrongfully passed the said cheques instead of returning the same to the collecting bank with the remarks that the funds in the said account were insufficient for payment. Therefore the said cheques cannot be passed. Since the said CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 144 of 176 145 cheques were retained in the branch, therefore as per banking practice, as the cheques were not returned on the same day to the clearing house or next day at the counter, the cheques were deemed to have been passed. Therefore actuating the collecting bank crediting the amounts of the cheque(s) to the party presenting the said cheque and also allowing the funds to be withdrawn by the parties.
205.Since CHR voucher ExPW2/O4 is a valuable security, therefore by altering the figure of Rs. 25 to 40 lacs a right is created in favour of the accused persons including A4 and other accused persons and also by doing so A1 also acknowledged that the bank was under a legal liability to pass the said cheques, meaning thereby there were sufficient in the account of the parties presenting the cheques. Therefore Section 467 IPC would also be attracted in this case, since the said forgery has been committed for the purpose of cheating the bank i.e causing wrongful loss to the bank and wrongful gain to the parties. Section 468 IPC is also attracted, since the said voucher has been used CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 145 of 176 146 during the banking transaction by the accused for the purposes of cheating, whereby making the bank to believe that the same was a genuine, despite fully knowing that the same was a forged document fraudulently and dishonestly. Section 471 IPC would also be attracted.
206. As discussed above, as A1 had dishonestly and fraudulently used the said voucher as genuine, despite knowing full well it was forged. By doing so i.e by forging the entries in the statement of account of M/s Pragati Conductors ExPW1/10 and that of M/s Kamal Enterprises ExPW1/8 and also making wrongful debit and credit entries in the CHR account of the bank, the accused had also falsified the accounts of the bank, which were in his possession. As a resultant, Section 477A IPC is also made out.
207.Regarding Section 13(i)(d)(iii) r/w Section 5(2) of PC Act 1947. The relevant law has been discussed in the in a case decided by Hon'ble High Court of Delhi titled Runu Ghosh Vs CBI Crl.A.482/2002, P.Rama Rao Vs CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 146 of 176 147 CBI Crl.A.509/2002 and Sukh Ram Vs CBI Crl.A. 536/2002 decided on 21.12.2011,wherein both the corresponding section i.e 5(1)(d) of 1947 Act and Corresponding sections 13(1)(d)(ii) of 1988 Act have also been discussed in juxta position with each other and it has been held as under:
66. This question lies at the core of the reference to this Division Bench. The material portion of the reference, while adverting to Sections 13(1)(d) and then dealing with the phraseology of Section 13(1)(d)(iii) and other preceding sub clauses, reads thus:
Whether the absence of adverbs like wilfully, fraudulently, dishonestly, corrupt or illegal means to qualify the verb obtains in this clause would mean that a public servant commits criminal misconduct if he while holding such office obtains for any person (and not for himself) any pecuniary advantage which is without any public interest? The statute appears to offer no CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 147 of 176 148 guidance as to what can be said to be a decision or act that is without public interest. Though the reference order elaborately lists out the salient facts in the Appeals, notes rival contentions, and even notices relevant case law, it is necessary to recapitulate the pre existing law, i.e. Section 5(1)(d) of the 1947 Act, and juxtapose it with the 1988 Act. The controlling clauses, in both provisions, are in pari materia (a public servant is said to commit the offence of criminal misconduct if he ...). Section 5(1)(d) reads as follows:
(d) if he, by corrupt or illegal means or by otherwise abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage...Section 13(1)(d)
(i), (ii) and (iii), on the other hand, read thus:
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 148 of 176 149 thing or pecuniary advantage; or Crl.A.Nos. 482/02, 509/02 & 536/02 Page 45
(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 servant, obtains for any person any valuable thing or pecuniary advantage without any public interest.... It is clear from the above comparison that in clause (i), the reference to "corrupt or illegal" means, (of a public servant obtaining for himself, or someone elseany valuable thing or pecuniary advantage) has been retained. However, the reference to doing of such an act "otherwise" (which was there in the previous law, i.e. Section 5(1)(d) has been omitted. The latter parts of Section 5(1)(d), i.e. the public servant obtaining for himself or for any one else any CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 149 of 176 150 valuable thing or pecuniary advantage, by abusing his position as a public servant has been retained, in Section 13(1)(d)(ii).
A new offence (or subspecies, of the existing offence) has been carved out, in Section 13 (1)(d)(iii) which criminalizes, as "criminal misconduct" the act of a public servant, holding office, which results in someone else (any person) benefitting by getting a valuable thing or pecuniary advantage, without any public interest. There is no doubt that Parliament created this new offence of criminal misconduct, where abuse of office, or use of corrupt or illegal means by a public officer, is inessential to prove the crime. What the prosecution has to establish, in accordance with law, is that the public officer, obtained for someone elsenot necessarily by abusing his office, or using corrupt or illegal means pecuniary advantage or a valuable thing without public interest.
79. What then is the behaviour or act which attracts such opprobrium as to result in criminal responsibility? It is not every act which results in loss of public interest, or that is contrary to CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 150 of 176 151 public interest, that is a prosecutable offence. There can be no doubt that all acts prejudicial to public interest, can be the subject matter of judicial review. In those cases, courts consider whether the decision maker transgressed the zone of reasonableness, or breached the law, in his action. However, it is only those acts done with complete and manifest disregard to the norms, and manifestly injurious to public interest, which were avoidable, but for the public servants overlooking or disregarding precautions and not heeding the safeguards he or she was expected to, and which result in pecuniary advantage to another that are prosecutabe under Section 13(1)(d)(iii). In other words, if the public servant is able to show that he followed all the safeguards, and exercised all reasonable precautions having regard to the circumstances, despite which there was loss of public interest, he would not be guilty of the offence. The provision aims at ensuring efficiency, and responsible behaviour, as much as it seeks to outlaw irresponsibility in public servants functioning which would otherwise go unpunished. The blameworthiness for a CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 151 of 176 152 completely indefensible act of a public servant, is to be of such degree that it is something that no reasonable man would have done, if he were placed in that position, having regard to all the circumstances. It is not merely a case of making a wrong choice; the decision should be one such as no one would have taken.
81. As noticed previously, the silence in the statute, about the state of mind, rules out applicability of the mens rea or intent standard (i.e. The prosecution does not have to prove that the accused intended the consequence, which occurred or was likely to occur). Having regard to the existing law Section 13(1)(e) (which does not require proof of criminal intent) as well as the strict liability standards prevailing our system of law, therefore, a decision is said to be without public interest, (if the other requirements of the provision, i.e. Section 13(1)(d)(iii) are fulfilled) if that action of the public servant is the consequence of his or her manifest failure to observe those CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 152 of 176 153 reasonable safeguards against detriment to the public interest, which having regard to all circumstances, it was his or her duty to have adopted.
208. The purport of Section 13(1)(d) of PC Act 1988 is even larger than the scope of Section 5(i)(d) of PC Act 1947. As the prosecution had to prove U/s 5(1)(d) of PC Act 1947 that the public officer obtained for someone else by abusing his office or using corrupt or illegal means any pecuniary advantage or valuable thing without public interest, whereas U/s 13(i)(d)(iii) the act of a public servant, holding office, which results in someone else(any person) benefiting by getting a valuable thing or pecuniary advantage without public interest, has to proved, further mens rea has not to be proved, since offence was a continuing one, as some acts were done prior to amendment of 1988 in PC Act. Therefore charge(s) U/s 5(1)(d) of PC Act 1947 as well U/s 13(i)(d) of PC Act 1988 were framed.
209. From the analysis of evidence discussed above it is clear that A1 abused his position as a public CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 153 of 176 154 servant and by illegal means by abusing his public office obtained pecuniary advantage to the accused persons including A4 and other accused persons who are proclaimed offenders without any public interest and VisaViz Section 5(1)(d) of PC Act and the prosecution has also been able to prove that the accused who was a public servant while holding the said office obtained for A4 and other accused persons(including those were proclaimed offender(s) any valuable thing or pecuniary advantage without public interest. The public interest would mean that the norms of the bank in this case were clearly breached i.e the accused was under an obligation to follow all the safeguards and to exercise all reasonable precautions according to banking norms, yet the accused in total disregard to the said banking norms passed the cheques of the accused persons including A4, when there was no sufficient balance in the account of the said parties on the day when the cheques were received for collection in the collecting bank through clearing house.
CC No. 06/15
CBI Vs. Vinay Kr. Jain & Ors 154 of 176 155
210. As per banking norms and practice if there was no sufficient balance in the account of the party, whose cheque is received for encashment, then the said cheque has to be returned to the presenting bank with the reason memo stating that the drawer does not have the sufficient funds to honour the said cheques through clearing house or the said cheques have to be returned on the counter of the said branch on the next date before commencement of banking hours. If the said cheque is not returned in this way it is deemed to have been cleared/paid and the collecting bank credits the cheque in the account of the party presenting the cheque.
211. Yet accused in total disregard to the established banking norms debited the amount of the said cheque(s) in the CHR account, which is clearing house receivable account maintained at the branch for adjustment of inward/outward clearing sent from the branch which is an office account and no entry pertaining to any customer account can be made in this account and under no circumstances cheques can CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 155 of 176 156 be passed by debiting this account i.e CHR account. Despite that accused passed the cheques of the parties having no sufficient balance in their account on the day, when the cheques were received through the clearing house for clearing and instead of debiting the party account of the party on the said day accused debited the CHR account which is an office account of the bank in which no entry pertaining to any customer can be made.
212. Accused debited the said cheque(s) on much later date when there was sufficient funds available in the accounts of the respective parties sufficient to pass the said cheques and on the day he also credited the CHR account which he had earlier debited to reconcile the CHR account by reversing the said debit entry and this way he caused loss of interest which the bank was legally entitled to earn between the day of passing the cheque without any sufficient balance and actual debit of the cheques in the account of the respective parties, thereby causing loss to the State Exchequer, as the Bank of Maharashtra is a Public Sector Bank. CC No. 06/15
CBI Vs. Vinay Kr. Jain & Ors 156 of 176 157
213. As discussed above, in the judgment of Runu Ghosh SUPRA mens rea is not essential ingredient of Section 13(1)(d), the same principle would apply to corresponding section 5(1)(d) of PC Act 1947. In this case due to the act of A1, A4 and other persons benefited by getting use of the funds of the bank for free without paying any interest on the funds so used, therefore pecuniary advantage has been caused to the said persons to the detriment of the bank, thereby Section 5(1)(d) of PC Act 1947 and Section 13(1)(d) of PC Act 1988 are clearly made out in this case.
214. It has to be seen whether there is any conspiracy between A1 and A4 with regard to aforesaid charges, which has been framed against them. The law with regard to the conspiracy has been discussed in the judgment K.R.Purushothaman Vs State of Kerala (2005) 12 Supreme Court Cases 631 (supra), which is reproduced as under:
11. Section 120A IPC defines "criminal conspiracy". According to this Section when two or more persons agree to do, CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 157 of 176 158 or cause to be done (i) an illegal act, or
(ii) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy. In Major E.G.Barsay V. State of Bombay Subba Rao J., speaking for the Court has said :(SCR p.228) "The gist of the offence is an agreement to break the law. The parties to such an agreement will be guilty of criminal conspiracy, though the illegal act agreed to be done has not been done. So too, it is not an ingredient of the offence that all the parties should agree to do a single illegal act. It may comprise the commission of a number of acts."
12. In State V. Nalini it was observed by S.S.M. Quadri, J. at JT para 677: (SCC pp.56869, para 662) "In reaching the stage of meeting of minds, two or more persons share information about doing an illegal act or a legal act by illegal means. This is the first stage where each is said to have knowledge of a plan for committing an illegal act or a legal act by illegal means. Among those CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 158 of 176 159 sharing the information some or all may form an intention to do an illegal act or a legal act by illegal means. Those who do form the requisite intention would be parties to the agreement and would be conspirators but those who drop out cannot be roped in as collaborators on the basis of mere knowledge unless they commit acts or omissions from which a guilty common intention can be inferred. It is not necessary that all the conspirators should participate from the inception to the end of the conspiracy; some may join the conspiracy after the time when such intention was first entertained by any one of them and some others may quit from the conspiracy. All of them cannot but be treated as conspirators. Where in pursuance of the agreement the conspirators commit offences individually or adopt illegal means to do a legal act which has a nexus with the object of conspiracy, all of them will be liable for such offences even if some of them have not actively participated in CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 159 of 176 160 the commission of those offences."
13. To constitute a conspiracy, meeting of minds of two or more persons for doing an illegal act or an act by illegal means is the first and primary condition and it is not necessary that all the conspirators must know each and every detail of the conspiracy. Neither is it necessary that every one of the conspirators take active part in the commission of each and every conspiratorial acts. The agreement amongst the conspirators can be inferred by necessary implication. In most of the cases, the conspiracies are proved by the circumstantial evidence, as the conspiracy is seldom an open affair. The existence of conspiracy and its objects are usually deduced from the circumstances of the case and the conduct of the accused involved in the conspiracy. While appreciating the evidence of the conspiracy, it is incumbent on the court to keep in mind the wellknown rule governing circumstantial evidence viz. each and every incriminating circumstance must be clearly established by reliable evidence and the circumstances proved CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 160 of 176 161 must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn, and no other hypothesis against the guilt is possible. Criminal conspiracy is an independent offence in the Penal Code. The unlawful agreement is sine qua non for constituting offence under the Penal Code and not an accomplishment.
Conspiracy consists of the scheme or adjustment between two or more persons which may be express or implied or partly express and partly implied. Mere knowledge, even discussion, of the plan would not per se constitute conspiracy. The offence of conspiracy shall continue till the termination of agreement.
14. Suspicion cannot take the place of legal proof and prosecution would be required to prove each and every circumstance in the chain of circumstances so as to complete the chain. It is true that in most of the cases, it is not possible to prove the agreement between the conspirators by direct evidence but the same can be inferred from the circumstances giving rise to conclusive or irresistible CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 161 of 176 162 inference of an agreement between two or more persons to commit an offence.
It is held in Noor Mohd. Mohd. Yusuf Momin V. State of Maharashtra, that:
(SCC pp.699700, para 7) "[I]n most cases proof of conspiracy is largely inferential though the inference must be founded on solid facts.
Surrounding circumstances and antecedent and subsequent conduct, among other factors, constitute relevant material."
15.It is cumulative effect of the proved circumstances which should be taken into account in determining the guilt of the accused. Of course, each one of the circumstances should be proved beyond reasonable doubt.
The acts or conduct of the parties must be conscious and clear enough to infer their concurrence as to the common design and its execution. While speaking for the Bench it is held by P. Venkatarama Reddi, J. in State (NCT of Delhi) V. Navjot Sandhu (p.63) as follows:
(SCC pp.69192, para 103) "103. We do not think that the theory of CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 162 of 176 163 agency can be extended thus far, that is to say, to find all the conspirators guilty of the actual offences committed in execution of the common design even if such offences were ultimately committed by some of them, without the participation of others. We are of the view that those who committed the offences pursuant to the conspiracy by indulging in various overt acts will be individually liable for those offences in addition to being liable for criminal conspiracy; but, the nonparticipant conspirators cannot be found guilty of the offence or offences committed by the other conspirators. There is hardly any scope for the application of the principle of agency in order to find the conspirators guilty of a substantive offence not committed by them.
Criminal offences and punishments therefor are governed by the statute. The offender will be liable only if he comes within the plain terms of the penal statute. Criminal liability for an offence cannot be fastened by way of analogy or by extension of a common law principle.
215. In view of the said judgment, it has to be seen CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 163 of 176 164 whether there was an agreement between A1 and A4 to do an illegal act or to do an act which is not a legal act by illegal means. The gist of the offence is an agreement to break the law and it is not necessary that all the conspirators must know each and every detail of the conspiracy, neither it is necessary that every conspirator takes active part in each act of conspiracy. The agreement amongst the conspirators can be inferred by necessary implication from the circumstances of the case. In view of the aforesaid law, it has to be seen whether there was any conspiracy between A1 and A4 in the facts of the present case.
216. From the entire evidence of the prosecution as discussed above, it is clear that the various cheques belonging to the firm M/s Pragati Conductors of which A4 was the proprietor and that of M/s Kamal Enterprises of which A4 was a partner bearing No. 40198485, 286913, 40135859, 966431, 397647, 26644243 were passed by A1 without any sufficient balance in the account of the said firm on the day CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 164 of 176 165 when the said cheques were received for collection through the clearing house in the Bank of Maharashtra, Mukherjee Nagar Branch, instead of debiting the account of the said firm of the cheque amount, the said cheques were simply kept in the Bank of Maharashtra Branch, thereby giving the impression that the said cheques have been cleared, thereby inducing the collecting bank to credit the said amount in the account of the party presenting the said cheque for collection and later on debiting the said account of the cheque amount, when there was sufficient funds available in the account of M/s Kamal Enterprises and M/s Pragati Conductors and thereby later on debiting the said cheque on that particular day causing huge losses of interest of the intervening period to the bank.
217. From the testimony of PW2 it is also proved that the cheque No. 401984 drawn by M/s Pragati Conductors of which A4 was the proprietor, which was presented for clearing dated 13.04.89, but the same was debited on 27.06.89, instead of 13.04.89 in the account of M/s Pragati Conductors as per statement of CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 165 of 176 166 account ExPW1/2. Similarly another cheque of the same firm bearing No. 401985 dated 12.04.89 of Rs. 2.5 lacs was presented through clearing on 13.04.89. This cheque was debited actually on 27.06.89 instead of 13.04.89 in the account of M/s Pragati Conductors ExPW1/2. These two cheques alongwith another cheque bearing No. 399905 dated 12.04.89 favouring Kansal Metal drawn by Strip India was of Rs. 7.5 lacs in favour of M/s Kansal Metals were all not debited in the respective accounts of the said parties on 13.04.89. However, on the same day this amount was debited in the CHR account by altering the original figure of Rs. 25,06,718.32 to Rs. 40,06,718.32, which voucher was prepared in the handwriting of A1 which is ExPW2/O4.
218. From the said CHR debit voucher it is clear that there were no sufficient funds in the account of M/s Pragati Conductors of which A4 was the Proprietor and as per the banking norms CHR account was only an office account where no entry pertaining to any customer can be made, the same is maintained at a CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 166 of 176 167 Branch for adjustment of Inward/Outward clearing sent from the Branch and under no circumstances cheques can be passed of any party by debiting this account, yet A1 and A4 in common agreement with each other to commit the offence of deceiving bank passed the above cheques, despite there was no balance in the account of M/s Pragati Conductors of which A4 was partner on the said date.
219. As the said cheques could not have been debited in the account of M/s Pragati Conductors on 13.04.89, as simply there was no balance to debit to pass the cheque, therefore he instead of debiting the said account A1 in conspiracy with A4 debited the CHR account of the bank, which cannot be debited for passing the individual cheque of the party and later on debiting the said cheque actually on 27.06.89. A1 also altered the figure of Rs. 25 to 40 lacs, which is making a false document U/s 464 of IPC as discussed above, as also resulting in falsification of the accounts of the bank.
220. Therefore, the agreement to commit an offence i.e offence of cheating/forgery/falsification of accounts CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 167 of 176 168 of the bank is clearly discernible from the aforesaid acts of A1 and A2 and conduct of A1 and A4 clearly give the inference of common design as well as it accomplishment by both of them in conspiracy with each other. Therefore A1 and A4 would also be liable for the offence U/s 120B IPC r/w 418/420/467/468/471 and 13(i)(ii) r/w Section 13(1)(d) of PC Act. Since no specific charge has been framed against A4 of Section 5(1)(d) r/w Section 5(2) of PC Act 1947, therefore he cannot be held up with regard to the said charge which has not been framed against him.
221. Regarding the charge U/s 120B r/w Section 477A as discussed in the previous ingredient with regard to A1 while discussing the substantive charges against him, the prosecution has been able to prove, vide testimony of PW1 that A1 falsified the account himself in his handwriting with regard to cheque ExPW1/7 (D60), ExPW5/81 in CC No. 05/15 bearing No. 266441 dated 02.02.1988 for Rs. 4.5 lacs of M/s Kamal Enterprises Account No. 802 of which A4 was the partner, which cheque was presented for clearing CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 168 of 176 169 on 04.02.88. As per the statement of account there was no adequate balance in the said account, yet A1 passed the cheque by mentioning ledger folio number 3/446 in his handwriting. He also made a corresponding entry in statement of account ExPW1/8 of M/s Kamal Enterprises at point A, allowing the unauthorized debit causing loss of interest to the bank to the tune of 20% p.a for the period 04.02.88 to 29.03.88 which has not been recovered till date. Same was the testimony of PW1 with regard to another cheque bearing No. 397647 ExPW1/1 for Rs. 2, 40,000/(D75) ExPW5/A41 in CC No. 05/15.
222. Similarly, A1 as per the testimony of PW1 allowed the said cheque which was received for clearing on 05.03.88, the cheque was drawn by M/s Pragati Conductors of which he was the proprietor and he allowed the unauthorized debit of Rs. 4.25 lacs by mentioning ledger folio no. 3/32 on the same under his handwriting and the said cheque was actually debited in the said account on 30.03.87 and in this regard he made a entry in his own handwriting at point A, also CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 169 of 176 170 statement of account of M/s Pragati Conductors at point A. Similarly, he deposed regarding the cheque No. 266442 ExPW1/11 D61 and ExPW5/A82 in CC No. 05/15 that the said cheque was similarly passed on 05.03.88 after receiving it from clearing without any adequate balance in the account of M/s Kamal Enterprises in which he was the partner, though no such debit could be allowed of Rs. 5,10,000/ and he also passed the said cheuqe by mentioning ledger folio number 3/32 in the said cheque and made corresponding entry in the statement of account at point B ExPW1/A.
223. Though there is a evidence that there was a common design or agreement to commit falsification of account as well in view of the testimony of PW1, as by virtue of Section 10 of Evidence Act anything said done or written by any of the coconspirator during the currency of conspiracy can be taken as an evidence against other conspirator or vice versa by Principal of agency.
224. However, with regard to A4 he cannot be CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 170 of 176 171 convicted U/s 120B r/w S 477 A for the technical reasons, since no charge has been framed under said section against him, though there is sufficient evidence for the said conspiracy i.e conspiracy to commit falsification of accounts as well.
225. Further A4 cannot be convicted for the offence U/s 5(1)(d) r/w Section 5(2) of PC Act, as some of the cheques mentioned above i.e cheque no. 397647(D75) dated 02.02.88 and 29.02.88, as also cheque No. 266442(D61) dated 28.02.88 are the cheques relating to the transactions which were carried out prior to the amendment of Prevention of Corruption Act 1988, as the said Act came into being w.e.f 09.09.88 and there is evidence with regard to conspiracy U/s Section 5(1)(d) r/w Section 5(2) of PC Act i.e there is sufficient evidence on the record to infer the conspiracy to commit an offence U/s 5(1)(d) r/w Section 5(2) against A1 as also A4, but since no charge under Section 5(1)(d) r/w Section 5(2) of PC Act has been framed against A4. Therefore due to technical reasons he cannot be convicted under said CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 171 of 176 172 section.
226. However, A1 against whom the charges U/s 477A as well as Section 5(1)(d) r/w S 5(2) of PC Act have been framed is liable to be convicted U/s 120B r/w Section 477 A as well as Section 5(1)(d) r/w Section 5(2) of PC Act and also the corresponding Section 13(2) r/w Section 13(i)(d) of PC Act, whereas A4 would only be convicted U/s 120B r/w 418/420/467/468/471 and Section 13(1)(d)(ii) r/w Section 13(2) of PC Act, whereas A1 would be convicted U/s 120B r/w Section 418/420/467/468/471/ 477A r/w Section 5(1)(d) r/w Section 5(2) of PC Act 1947 and also corresponding Section 13(1)(d)(iii) r/w Section 13(2) of PC Act 1988.
227. Regarding Substantive offence A4 dishonestly induced the bank(which is also a person to part with the money) i.e cheque(s) drawn by A4 were passed in conspiracy with A1, despite A4 having no sufficient balance in his account(s) i.e in the account of M/s Pragati Conductors Ltd., bearing account No. 633 of which he was the proprietor and also in the account of M/s Kamal CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 172 of 176 173 Enterprises A/c no .802 of which he was the partner, yet the said cheque(s) which should have been returned or dishonoured with the remarks insufficient funds, the same were passed by A1 by debiting the CHR account of the bank which cannot be debited under any circumstances to pass the individual cheque(s) of any party with regard to the instances discussed above.
228. Therefore this was clearly within the knowledge of A4 that he had no funds in his accounts , yet the cheques belonging to him were passed, therefore causing wrongful loss to the bank and wrongful gain to him, and A4 thereby induced the bank to part with the money of the cheque amounts, which should not have been passed, as there was no sufficient amount in the said accounts of A4 for passing the cheques, yet A4 in conspiracy with A1 deceived the bank in getting the said cheques passed, to which he was not entitled and the said cheques were later on debited on much later date when there was funds in the said accounts, thereby A4 dishonestly induced the bank to deliver the said funds to him, to which he was not entitled by deceiving them, CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 173 of 176 174 thereby causing loss of interest to the bank for the said period and corresponding gain of funds to A4 without paying any interest. Accordingly Section 420 IPC is clearly made out against A4.
TO SUM IT ALL
229. The present case is not based merely upon testimonies of witnesses who had occasion to observe particular fact or series of facts or event. The testimonies of such witnesses suffer from human errors, which all human being suffer in the shape of observational errors, bias, objectivity, his position at the time of observation, as also the errors in perception, recollection and narration at the time of deposition. Therefore their testimonies in such a case could suffer from errors of human nature, whereas in the present case such errors need not detain us, as such errors are obliterated by the overwhelming number of tangible things in the shape of documents, which rule out possibilities of such errors, making the case of prosecution highly reliable. The only rider being the prosecution had to prove the genuineness of the CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 174 of 176 175 said documents which has been duly proved in this case by the prosecution.
230. Net result of the probative force of the entire mass of the prosecution case, taken as a whole, on the scales where probability of happening any event/fact is measured is touching the point of near certainly i.e on the scale of 1 to 10 it would be touching more than nine points, which is almost next to certainly, which being 10 cannot be obtained in any case, being perfect probability. On said scales the defence story is touching very low level(s) of probative force, making it highly improbable or unlikely touching the lowest most points on the said scales.
231. The net result of aforesaid discussion is that A1 is convicted U/s 120B r/w Section(s) 418/420/467/468/471/477A IPC r/w Section 5(1)(d) r/w Section 5(2) of PC Act 1947 and also corresponding Section 13(1)(d)(iii) r/w Section 13(2) of PC Act 1988, as also for substantive offence(s) under Section 418/420/467/468/471/477A IPC as also under Section 5(1)(d) r/w Section 5(2) of PC Act 1947 and also CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 175 of 176 176 corresponding Section(s) 13(1)(d)(iii) r/w Section 13(2) of PC Act 1988.
At the same time, A4 is convicted for the offence(s) U/s 120B IPC r/w 418/420/467/468/471 IPC and 13(1)
(d)(iii) r/w Section 13(2) of PC Act 1988. A4 is also convicted substantively U/s 420 IPC.
ANNOUNCED IN THE OPEN (Sanjeev Aggarwal)
COURT ON 03.06.2016 Special Judge,
CBI03 (PC Act)
Delhi/03.06.2016
CC No. 06/15
CBI Vs. Vinay Kr. Jain & Ors 176 of 176
177
IN THE COURT OF SH. SANJEEV AGGARWAL
SPECIAL JUDGE: CBI03 (PC ACT) DELHI
CC No.06/15 RC No. 7(A)/1994
CBI/SIUVIII/ND
CBI Vs. (i) Vinay Kumar Jain (A1)
S/o Late Sh. T.C.Jain, Ex.Branch
Manager, Bank of Maharashtra, Dr.
Mukherjee Nagar Branch, Delhi, R/o
A74, Ram Prashta, Ghaziabad UP(Public Servant)
(ii) Praveen Kumar Gupta(A4) S/o Late Sh. Hansraj Gupta, R/o 496/A, Bhola Nath Nagar, Shahdara, Delhi32((Private and Proprietor of M/s Pragati Conductors and Partner in M/s Kamal Enterprises) Judgment delivered on: 03.06.2016 ORDER ON SENTENCE:
1. Vide judgment dated 03.06.2016, convict V.K.Jain (A1) was held guilty for the offence(s) punishable u/S 120B r/w Section(s) 418/420/467/468/471/477A IPC r/w Section 5(1)(d) r/w Section 5(2) of PC Act 1947 and CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 177 of 176 178 also corresponding Section 13(1)(d)(iii) r/w Section 13(2) of PC Act 1988, as also for substantive offence(s) under Section 418/420/467/468/471/477A IPC as also under Section 5(1)(d) r/w Section 5(2) of PC Act 1947 and also corresponding Section(s) 13(1)
(d)(iii) r/w Section 13(2) of PC Act 1988.
Convict Praveen Kumar Gupta (A4) was held guilty for the offence(s) punishable u/S 120B IPC r/w 418/420/467/468/471 IPC and 13(1)(d)(iii) r/w Section 13(2) of PC Act 1988. A4 was also convicted substantively U/s 420 IPC.
2. I have heard Ld.Spl.PP for CBI Sh.J.S.Wadia, Ld.counsel for convict (A1) Sh.H.R.Dhamija and Ld.counsel for convict (A4) Sh.H.R.Dhamija, Sh.M.N.Dudeja and Ms.Usha Singh.
3. It is contended by Ld.Spl.PP for CBI that both the convicts are involved in serious economic offence(s) and prays that strict punitive punishment should be granted to both the convicts, so that a message should go to the society at large that such kind of crimes do CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 178 of 176 179 not pay.
4. On the other hand Ld.counsel for convict (A1) Sh.
H.R.Dhamija has submitted that A1 is a senior citizen aged around 66 years at present, suffering from old age diseases namely Hypertension, and is also suffering from weak heart. It is also stated that he is the only bread earner of his family and is engaged in giving private tuitions, which is the only source of his livelihood. It is also stated that his wife is also suffering from Hypertension for the last many years. In this regard, he has also filed medical prescriptions of his wife. It is also stated that convict is facing trial in this case since 1998 and investigations were carried out starting from year 1994. It is also stated that convict has already suffered incarceration for a period of 10/12 days during the trial of this case. Therefore, it is prayed that lenient punishment should be awarded to him keeping in view these mitigating facts.
5. Regarding A4, Ld.counsel Sh.Dudeja and Ms.Usha Singh submit that A4 is suffering from several ailments namely obesity, as he is weighing around 115 CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 179 of 176 180 kgs. at present, he is also suffering from severe back pain and is also being advised bed rest. He has also suffered surgery as his gall bladder was removed and he is also suffering from high blood pressure and cholestrol. It is also stated that his wife is also suffering from various ailments like asthma, bronchitis, arthritis, stress and depression and kidney functional issues. It is also stated that all these ailments are supported by the documents filed by him on the record today.
6. It is also stated that he has one daughter, who is of marriageable age and if he is sent behind bars, then same will be a social stigma and it will be difficult to get marriage of his daughter done due to the same reason. Similarly, his son is also of marriageable age. It is also stated that he is 58 years of age at present and suffering from financial instability, as he is jobless for last 21 years. It is also stated that he has stood trial since year 1998 without being absent even on a single date, though it is stated that the other convict was a Proclaimed Offender. Therefore, it is stated that these CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 180 of 176 181 are the mitigating circumstances under which lenient punishment should be awarded.
7. I have gone through the rival contentions.
Ld.counsel for A4 has relied upon following judgments in support of his contentions:
(a) V.K.Verma Vs. CBI Cril.Appeal No.404/2014 decided by the Hon'ble Supreme Court on 14.02.2014 , as also the judgment (b) Bachchan Singh Vs State of Punjab 1980 Crl.J 636, (c) Sangeet & Anr. Vs State of Haryana Crl.Appeal Nos.490491 of 2011, (d) M.C.Gupta Vs CBI with Mohan Lal Gupta Vs CBI Crl.Appeal No.1332 of 2012 and Crl.Appeal No.1333 of 2012.
8. In support of his contentions, relying upon the above judgments, the Ld.counsel for A4 has prayed that most lenient punishment be awarded to the convict (A4) taking into account various mitigating circumstances.
9. At the same time, it has been held in judgment passed by Hon'ble Supreme Court of India in Criminal CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 181 of 176 182 Appeal Nos.10491050 of 2015 (@SLP(Crl) Nos. 40994100 of 2015) titled as Raj Bala Vs. State of Haryana & Ors. as under :
It needs no special emphasis to state that prior to the said decision, there are series of judgments of this Court emphasizing on appropriate sentencing. Despite authorities existing and governing the field, it has come to the notice of this Court that sometimes the court of first instance as well as the appellate court which includes the High Court, either on individual notion or misplaced sympathy or personal perception seems to have been carried away by passion of mercy, being totally oblivious of lawful obligation to the collective as mandated by law and forgetting the oftquoted saying of Justice Benjamin N. Cardozo "Justice, though due to the accused, is due to the accuser too"
and follow an extremely liberal sentencing policy which has neither legal permissibility nor social acceptability.
A Court, while imposing sentence, has a duty to respond to the collective cry of the society. The legislature in its wisdom has conferred discretion on the Court but the duty of the court in such a situation becomes more difficult and complex. It has to exercise the discretion on reasonable and rational parameters. The discretion CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 182 of 176 183 cannot be allowed to yield to fancy or notion. A Judge has to keep in mind the paramount concept of rule of law and the conscience of the collective and balance it with the principle of proportionality but when the discretion is exercised in a capricious manner, it tantamounts to relinquishment of duty and reckless abandonment of responsibility. One cannot remain a total alien to the demand of the sociocultural milieu regard being had to the command of law and also brush aside the agony of the victim or the survivors of the victim. Society waits with patience to see that justice is done. There is a hope on the part of the society and when the criminal culpability is established and the discretion is irrationally exercised by the court, the said hope is shattered and the patience is wrecked. It is the duty of the court not to exercise the discretion in such a manner as a consequence of which the expectation inherent in patience, which is the "finest part of fortitude" is destroyed. A Judge should never feel that the individuals who constitute the society as a whole is imperceptible to the exercise of discretion. He should always bear in mind that erroneous and fallacious exercise of discretion is perceived by a visible collective.
10. Further, it has been held in judgment CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 183 of 176 184 "14....... It is so, as has been observed in Shobha Suresh Jumani Vs. Appellate Tribunal {(2001) 5 SCC 755}, that there is a cancerous growth of corruption which has affected the moral standards of people and all forms of governmental administration.
15. In case of Niranjan Hemchandra Sashittal Vs. State of Maharashtra {(2013) 4 SCC 642}, it has been observed that : '...corruption mothers disorder, destroys societal will to progress, accelerates undeserved ambitions, kills the conscience, jettisons the glory of the institutions, paralyses the economic health of a country, corrodes the sense of civility and mars the marrows of governance. It is worth noting that immoral acquisition of wealth destroys the energy of the people believing in honesty, and history records with agony how they have suffered. The only redeeming fact is that collective sensibility respects such suffering as it is in consonance with the constitutional morality.'
11. In view of the abovesaid judgments, an equitable approach has to be adopted balancing the rights of the complainant for justice and adequate punishment with those of convict of proportionality of punishment with regard to the gravity of offence(s) committed by the convict.
CC No. 06/15
CBI Vs. Vinay Kr. Jain & Ors 184 of 176 185
12. In the present case, A1 in conspiracy with A4 debited the CHR account of the bank against all established banking norms by debiting the cheques of the A4 and certain other accused persons (who are Proclaimed Offenders) at the time when there was no sufficient funds in the account of A4 for honouring the said cheques. The CHR account which is a clearing house receivable account maintained at a branch for adjustment of inward / outward clearing sent from the branch, which is an office account, and no entry pertaining to any customer can be made in this account and under no circumstances, cheques can be passed by debiting this CHR account. Yet, A1 in conspiracy with A4 passed the cheques of A4 having no sufficient balance in the account of the firms namely M/s Pragati Conductors of which A4 was a Proprietor and that of Kamal Enterprises of which A4 was the Partner. When the said cheques were received through clearing house for clearing and instead of debiting the party account i.e. the account of M/s Pragati Conductors and Kamal Enterprises on the said CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 185 of 176 186 day, debited the CHR account which is an office account of the bank in which no entry pertaining to any customer can be made.
The A1 in conspiracy with A4 debited the cheques of above firms on much later on date, when there were sufficient funds available in the account of said firms sufficient to pass said cheques and on the same day he also credited the CHR account by reversing the said debit entry in order to reconcile the said account and in this way, caused loss of interest to the Bank of Maharashtra, Dr.Mukherjee Nagar Branch, which the said bank was legally entitled to earn between the day of passing the cheque without any sufficient balance and actual debit of the cheques in the account of the respective parties, thereby causing loss to the Bank of Maharashtra which is a Public Sector Bank, there are numerous instances with regard to the said modus operandi adopted by A1 which have been enumerated / discussed in the judgment dated 03.06.2016.
13. A1 was working as Branch Manager, Dr.Mukherjee CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 186 of 176 187 Nagar Branch of Bank of Maharashtra, Delhi in a position of trust i.e. to say he was in a fiduciary relationship with regard to the funds of the bank of which he was the custodian. Yet, he by abusing his official position as a public servant in conspiracy with A4 and other accused persons ( who are Proclaimed Offenders) allowed them to enjoy the bank funds to the tune of Rs.20 Crores without any sanction thereby causing loss of interest to said bank branch.
14. Ld.counsel for convicts A1 and A4 have argued that loss of interest in the present case is very meager which is also a mitigating factor in awarding the lenient punishments to the convicts A1 and A4. To my mind this contention is without any substance, as it is not the quantum of the loss suffered by the bank, but the manner in which A1 flaunted the banking norms, allowing the customers of the bank to enjoy the funds of the bank to the tune of Rs.20 crores without any sanction and cost. As A1 was not running his own personal banking business so that he could lend the money to anyone, as he liked in any manner which he CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 187 of 176 188 thought it to be fit, rather the A1 was holding a fiduciary relationship of utmost trust with regard to the funds of the bank, therefore the quantum of loss actually caused to the Bank of Maharashtra would not be a overwhelming mitigating circumstance.
15. There is a quote by Frederick William Robertson There are three things in the world that deserve no mercy, hypocrisy, fraud and tyranny.
As also by Publilius Syrus "it is a fraud to borrow what we are unable to pay."
16. From the above discussion(s), taking into account all the mitigating circumstances spelled out above, coupled with cry for appropriate sentence, the interest of justice shall be met, if the king pin of this fraud i.e. convict (A1) V.K.Jain is sentenced to rigorous imprisonment (RI) for 2 years and fine of Rs.5,000/, in default of payment of fine he shall undergo SI for 3 months u/S 120B IPC r/w Section(s) 418/ 420/ 467/ 468/471/477A IPC r/w Section 5(1)(d) r/w Section 5(2) CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 188 of 176 189 of PC Act 1947 and also corresponding Section 13(i)
(d)(iii) r/w Section 13(2) of PC Act 1988. With regard to substantive offence(s) u/S 418 IPC, convict (A1) is sentenced to RI for one year and fine of Rs.1,000/, in default of payment of fine SI for 15 days. With regard to substantive offence(s) u/S 420 IPC, convict (A1) is sentenced to RI for three years and fine of Rs.5,000/, in default of payment of fine SI for 3 months. With regard to substantive offence(s) u/S 467 IPC, convict (A1) is further sentenced to RI for four years and fine of Rs.7,000/, in default of payment of fine SI for 4 months. With regard to substantive offence(s) u/S 468 IPC, convict (A1) is further sentenced to RI for three years and fine of Rs.5,000/, in default of payment of fine SI for 3 months. With regard to substantive offence(s) u/S 471 r/w Sec.465 IPC, convict (A1) is further sentenced to RI for one year and fine of Rs.1,000/, in default of payment of fine SI for 15 days. With regard to substantive offence(s) u/S 477A IPC, convict (A1) is further sentenced to RI for three years and fine of Rs.5,000/, in default of CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 189 of 176 190 payment of fine SI for 3 months. With regard to substantive offence(s) under Section 5(1)(d) r/w Section 5(2) of PC Act 1947 and also corresponding Section(s) 13(i)(d)(iii) r/w Section 13(2) of PC Act 1988, convict (A1) V.K.Jain is further sentenced to RI for three years and fine of Rs.5,000/, in default of payment of fine SI for 3 months.
17. Regarding convict (A4) Praveen Kumar Gupta, who was the cohort of A1 in the crime, interest of justice shall be met if he is sentenced to RI for two years and fine of Rs.5,000/, in default of payment of fine SI for three months for the offence(s) U/s 120B IPC r/w 418/420/467/468/471 IPC and 13(1)(d)(iii) r/w Section 13(2) of PC Act 1988. With regard to substantive offence(s) u/S 420 IPC, convict (A4) Praveen Kumar Gupta is further sentenced to RI for three years, fine of Rs.10,000/, in default of payment of fine SI for six months.
18. All the sentences of both the above convicts shall run concurrently to each other. The benefit of the period already spent by both the convicts in judicial CC No. 06/15 CBI Vs. Vinay Kr. Jain & Ors 190 of 176 191 custody, if any, during the trial shall be extended to them u/S 428 Cr.P.C.
19. Copy of the judgment alongwith order on sentence be given to the convicts free of cost. File be consigned to record room.
ANNOUNCED IN THE OPEN (Sanjeev Aggarwal)
COURT ON 07.06.2016 Special Judge,
CBI03 (PC Act)
Delhi/07.06.2016
CC No. 06/15
CBI Vs. Vinay Kr. Jain & Ors 191 of 176