Delhi District Court
Cc No. 532161/16 Cbi vs . S.K. Arora & Ors. Page No. 1 Of 72 on 28 October, 2017
IN THE COURT OF MANOJ JAIN
SPECIAL JUDGE (PC ACT) (CBI)-04: CENTRAL DISTRICT
TIS HAZARI COURTS: DELHI
CC No. 532161/2016
FIR No. RC No. 6(E)/1998/CBI/SIU-X/ND
CNR No. DLCT01-000004-2000
Central Bureau of Investigation (CBI)
Versus
1. Suresh Kumar Arora (Deceased), (hereinafter referred to as A-1)
S/o Late Sh. P.L. Arora,
R/o 179-C, Pocket-B, Mayur Vihar, Phase-II,
Delhi.
(Proceedings stood abated against him vide order dated 20.05.2015)
2. R.K. Sharma, (hereinafter referred to as A-2)
S/o Late Sh. Mool Chand Sharma,
R/o L-30-3, DLF Phase-II, Gurgaon
3. Kamal Naresh Sharma, (hereinafter referred to as A-3)
S/o Late Sh. Mool Chand Sharma,
R/o 68/15, Gurgaon
4. Vikram Singh, (hereinafter referred to as A-4)
S/o Late Sh. Khilli Ram,
R/o 109, Munirka Village,
New Delhi
5. Kulbhushan Sharma, (hereinafter referred to as A-5)
S/o Sh. Krishan Sharma,
R/o WZ-95, Palam Village,
New Delhi - 110045
Date of FIR : 29.10.1998
Date of Institution : 22.12.2000
Date of conclusion of final Arguments : 17.10.2017
Date of Judgment : 28.10.2017
CC No. 532161/16 CBI Vs. S.K. Arora & Ors. Page No. 1 of 72
JUDGMENT
PROSECUTION VERSION 1.0 Accused S. K. Arora (A-1) joined as Branch Manager, Oriental Bank of Commerce, Basant Lok Branch, New Delhi on 27.11.1990. From there, he was transferred to Mahipalpur Branch on 3.4.1996 in the same capacity.
1.1 A written complainant was received against him from Sh. S. K. Singh (PW-1) alleging therein that A-1 along with various other persons had cheated their bank to the tune of Rs. 1,27,76,688/-. On the basis of such complaint received from Sh. Singh, FIR in question was registered on 29.10.1998 and investigation was carried out.
1.2 Investigation revealed that A-1 had entered into criminal conspiracy with his other co-accused and caused loss of said amount of Rs. 1,27,76,688/- to Oriental Bank of Commerce. It came to fore that one fictitious account in the name of H. K. Suri was opened. Such account was in, fact, a benami account held by accused R. K. Sharma (A-2) of Mool Chand Motors. A-1 was instrumental in opening of such account without any security. A-1 sanctioned loan of Rs. 5,16,384/- in said account. Such limit was enhanced to Rs. 18 lacs by A-1 and as per subsequent ledger sheet, the sanctioned limit touched Rs. 88.40 lacs. Number of withdrawals was made from said account in the name of Kamal Naresh Sharma (A-3), Kulbhushan Sharma (A-5) and A-2 himself. Except for blank loan papers viz. promissory note, application form and blank debit and credit vouchers, nothing was found in the bank. No Ledger sheet, containing any entry for the period 17.1.96 to 20.3.96, was traceable in the bank either. A-1 also misled the loan officials that loan documents had been obtained and had been kept in safe custody and that sufficient securities in the form of FDRs were available. He also falsely informed his other colleagues that A-2 was selling his house and some other property to H. K. Suri for Rs. 90 lacs and such proceeds could be utilized to adjust the demand loan account.
CC No. 532161/16 CBI Vs. S.K. Arora & Ors. Page No. 2 of 72 1.3 As regards accused Kamal Naresh Sharma (A-3), who happens to be brother of A-2, it was learnt that number of accounts were opened and money was rotated from account to other. All this was done in terms of conspiracy. A-1 was instrumental in opening such accounts for said purpose. He had sanctioned a demand loan of Rs. 60,000/-. Outstanding in the said account was discharged by transferring the amount from demand loan account of H. K. Suri. Scrutiny of Current Account No. 1624, in the name of A-3, revealed number of unauthorized withdrawals/overdraft. Outstanding amount in said account went beyond Rs. 18 lacs which was shown adjusted by opening a new Loan Account ( DL 38) in the name of A-3, from where the said amount was shown credited in CA no. 1624. There was outstanding of more than Rs. 9 lacs in said account as well. In similar manner, another CA No. 1024 in name of A-3 was opened and said amount was debited in newly opened account and credited in Loan account to show adjustment.
1.4 Current account (CA No. 1413, 1523 and 1571) were also used for siphoning off the funds which indicated the clear involvement of A-3 besides of A-2.
1.5 Another Demand loan account (DL 136) was also opened in name of A-3 and the outstanding amount pertaining to three other fictitious loan accounts (DL 99,101 and 125) was shown adjusted by debiting the amount from DL A/c
136. 1.6 As regards accused Vikram Singh (A-4), it was learnt that he had opened current account No. 1445 as proprietor of M/s V. A. Construction Company and there was an over draft to the tune of Rs. 4,88,134.10 as on 25.9.1995 which was dishonestly and fraudulently adjusted by transfer of equivalent amount from the aforesaid demand loan account being held in the fictitious name of H. K. Suri. More importantly, as per the record of the bank, no overdraft facility was sanctioned in the aforesaid current account of M/s V. A. CC No. 532161/16 CBI Vs. S.K. Arora & Ors. Page No. 3 of 72 Construction Company.
1.7 As regards accused Kulbhushan Sharma (A-5), it was learnt that current account No. 783 was opened by him on 2.7.1990 which was introduced by A-2 and during tenure of A-1, an amount of Rs. 1.50 Lacs was transferred from the aforesaid demand loan account of H. K. Suri to current account No. 783 vide voucher prepared and passed by A-1 himself. It was also learnt that A-1 had also unauthorizedly paid Rs. 6.70 lacs and Rs. 10 lacs to A-5 vide cash vouchers and these were dishonestly and fraudulently prepared and passed by A-1.
1.8 Various other accounts were scrutinized. The loan documents were also evaluated which revealed that several FDRs/CDRs issued by Basant Lok Branch which had been shown as security for sanctioning different loan account of Oriental Bank of Commerce, Mahipalpur Branch were required for renewal or transfer from Basant Lok Branch to Mahipalpur Branch and A-1 had dishonestly taken away these FDRs/CDRs for the said purpose vide receipt signed by him in presence of Subash Aghi (PW-17), P. K. Malhan (PW-27), J. S. Sachdeva (PW29) and Vijay Kumar Sharma (PW-20).
1.9 Investigation indicated that A-1 had intentionally and knowingly caused disappearance of material evidence with intention of screening himself and his co-accused from legal punishment. He, being branch manager, was over all in-charge of the aforesaid two branches during the relevant period. He entered into criminal conspiracy with his said co-accused persons and misused his official position and by corrupt and illegal means and without any public interest caused loss of Rs. 1,27,76,687.10 to the bank and obtained corresponding pecuniary advantage for his co-accused.
1.10 The questioned documents were sent to Govt. Examiner of Questioned Documents, Simla and the analysis confirmed the involvement of accused persons in the cheating in question.
CC No. 532161/16 CBI Vs. S.K. Arora & Ors. Page No. 4 of 72 1.11 Sh. S. K. Arora (A-1) was dismissed from service of the bank during the investigation stage itself and, therefore, no sanction for his prosecution was eventually sought.
1.12 Matter was also investigated qua some other persons viz. Sh. R. N. Rattan (PW58), Balraj Singh, Kalyan Singh (PW7), Gautam Chand Jajoria, R. Sridhar (PW19) and Kamal Bhushan but since, according to CBI, sufficient material did not surface against them, their names were merely put in column no. 2 and, therefore, they were not sent up to face trial.
COGNIZANCE AND CHARGES 2.0 After investigation, CBI filed a charge sheet for offences punishable u/s 120B R/w 420/467/468/471 IPC and section 13(2) R/w section 13(1)(d) of P.C. Act and substantive offence u/s 420/467/468/471 IPC against all the five accused persons and substantive offence u/s 13(2) R/w section 13(1)(d) of P.C. Act and sec 201 IPC against A-1.
2.1 All the five accused persons were charged for offences punishable u/s 120B R/w section 420/467/471/477A IPC and section 13(2) R/w section 13(1) (d) of P.C. Act.
2.2 A-1 was also charged separately for offences punishable u/s 420/467/471/477A IPC and section 13(2) R/w section 13(1)(d) of P.C. Act.
2.3 A-2 was charged separately for offences u/s 420/467/471 IPC R/w section 120B IPC.
CC No. 532161/16 CBI Vs. S.K. Arora & Ors. Page No. 5 of 72 2.4 A-3, A-4 & A-5 were also charged separately for offences u/s 420 IPC R/w section 120B IPC.
2.5 It will be worthwhile to mention right here that A-1 died on 03.05.2015 and proceedings against him stood abated vide order dated 20.05.2015.
PROSECUTION EVIDENCE 3.0 Prosecution was directed to adduce evidence and it examined 66 witnesses.
3.1 Witnesses can be classified as under:-
Bank Officials of OBC Sl. No. Name Purpose of examination
1. PW-1 S. K. Singh, Vigilance & Chief Vigilance To prove complaint.
Officer in Oriental Bank of Commerce at Head Office
2. PW-2 C. M. Khurana, Chief Manager Credit To prove circulars of the bank.
Department at Regional Office at the relevant time
3. PW-3 S. K. Kakkar, Assistant Regional To prove transfer of A-1 from Basant Lok Branch Manager (Staff) OBC to Mahipalpur Branch, suspension and dismissal from service.
4. PW-4 Azad Singh posted as Clerk-cum-Cashier To prove handwriting and signatures of A-1 and in OBC transferred from Mahipal Pur Branch to other bank record. Basant Lok Branch at the relevant time.
5. PW-7 Kalyan Singh, Clerk-cum-Cashier in To prove the personal loan transaction with A-2, Basant Lok Branch return of it from the account of H.K. Suri and seizure of documents by CBI.
6. PW-8 A. S. Kotwal, Issuing Officer at Basant To prove pay orders issued in favour of IOL on Lok Branch of OBC. account of A-2.
7. PW-9 R. C. Sharma, Branch Manager, To prove the documents given to CBI and Mahipalpur seizure memo.
8. PW-10 Jaipal Singh, Clerk-cum-Cashier at To prove documents handed over to CBI relating Munirka Branch of OBC to account no. 738 of Birkha and other record.
9. PW-11 J. S. Mehra, posted as Branch Manager To prove seizure and bank documents like CDRs Basant Lok Branch from July, 1994 to 21.12.95 relating to Shree Associates.
CC No. 532161/16 CBI Vs. S.K. Arora & Ors. Page No. 6 of 72
10. PW-12 V.K. Gupta, DGM (Personal) at Head To prove documents relating to personal file of A-
Office of OBC. 1.
11. PW-13 S. V.Taneja Dy. Chief Manager, Head To prove signature of PW-1 on the complaint.
Office of OBC
12. PW-14 P. L. Ahuja, posted as DGM Credit at To prove Manual of Advance Volume-I and Head Office of OBC at the relevant time. circulars of the bank.
13. PW-16 Ashok Verma, Chief Manager, To prove the Inspection report.
Inspection & Control Department, Head Office of OBC
14. PW-17 Subhash Aghi, Branch Manager at To prove handwriting and signature of A-1, Mahipalpur at the relevant time. promissory note and request for loan of Shree Associate, FDRs etc.
15. PW-18 Ravi Mehra, Manager at Basant Lok To prove bank record of Basant Lok Branch of Branch of OBC. OBC.
16. PW-20 Vijay Kumar Sharma, Manager at To prove the various loan documents, vouchers Mahipalpur Branch from 1994-9, i.e. prior to A- etc.
1.
17. PW-21 Rajiv Luthra, Manager at OBC To prove the documents relating to various Mahipalpur Branch from 1993/94 to 1999. transactions of the Basant Lok Branch.
18. PW-22 Updesh Sharma, Officer of OBC Basant To prove the documents relating to various Lok Branch from 1992 to 1996. transactions of the Basant Lok Branch.
19. PW-24 Mukul Kumar Verma, posted To prove the documents relating to various probationer officer at OBC Basant Lok branch transactions of the Basant Lok Branch. from Jan.94 to Dec. 98.
20. PW-25 Rajesh Gupta, posted as probationer To prove the documents relating to various officer at OBC Basant Lok Branch from 1994 to transactions of the Basant Lok Branch. April, 1996.
21. PW-26 Rajiv Kumar, posted as probationer To prove the documents relating to various officer at OBC Basant Lok Branch from 16.3.92 transactions of the Basant Lok Branch. till Nov. 1997.
22. PW-27 P. K. Malhan posted as ARM in To prove the inspection report of Mahipalpur Regional Office OBC at the relevant time. Branch of OBC relating to FDRs.
23. PW-29 J. S. Sachdeva, Chief Manager in To prove one receipt in the hand of A-1.
Regional Office at the relevant time.
24. PW-30 Rakesh Kumar Jassal, posted at To prove the loan documents.
Mahipal Pur Branch of OBC from 1992 till 1997.
25. PW-32 H. P. Meena, Manager of OBC. To prove the writing and signatures of A-1.
26. PW-33 S. K. Singh, Special Assistant in OBC at To prove signatures of A-1.
Mahipalpur Branch
27. PW-35 Ashok Kumar, Manager, OBC at Basant To prove the record of the bank.
Lok Branch
28. PW-40 J. K. Saxena, Manager, OBC at New To prove specimen signatures taken by CBI.
Friends Colony, N. Delhi in 1999.
29. PW-41 Neelam Ohri, Loan Officer in OBC To prove the various transactions relating to Mahipalpur Branch at the relevant time. sanction of loan etc.
30. PW-43 Balraj Singh, Head Cashier in OBC To prove signatures of A-1 and other official of Basant Lok Branch at the relevant time. the bank.
31. PW-44 O. P. Sharma, Chief Manager Loans To prove his inspection report of the Basant Lok CC No. 532161/16 CBI Vs. S.K. Arora & Ors. Page No. 7 of 72 Department of OBC at Head Office at the branch.
relevant time.
32. PW-49 Sanjeev Sahni, Gr-I Officer at OBC To prove various documents of the branch.
Basant Lok Branch at the relevant time.
33. PW 52 J. N. Ahuja, AGM (Inspection & Control To prove the inspection report relating to various Department, Head Office of OBC at the FDRS in Basant Lok and Mahipalpur Branch of relevant time. OBC.
34. PW-53 Vinay Sagar Gupta, Sr. Manger in OBC To prove various documents and transactions in Basant Lok branch during 1995-97. the accounts.
35. PW-58 R. N. Rattan, Chief Manager OBC To prove various documents and transactions in Basant Lok Branch at the relevant time. the accounts.
36. PW-66 N. C. Khanna, Basant Lok Branch OBC To prove his writing and signatures on the record of the bank.
WITNESSES FROM INDIAN OIL CORPORATION (IOC) Sr. No. Name Purpose of examination
37. PW-5 P.S. Negi, Sr. Terminal Manager IOC Ltd. To prove the letter and draft from OBC received by IOL.
38. PW-57 A. K. Malik Sr. Terminal Manger IOC To prove his signatures on the letter.
Ltd.
39. PW-63 Suresh Chander, Assistant, IOC Ltd. To prove certain challans of IOC Ltd.
40. PW-64 Pradeep Chawla, Accountant IOC Ltd. To prove certain challans of IOC Ltd.
41. PW-65 Ramesh Kumar, Accountant with IOC To prove certain challans of IOC Ltd.
Ltd.
OTHER WITNESSES
Sr. No. Name Purpose of examination
42. PW-15 Naveen Jain from Gurgaon To prove purchase of property.
43. PW-19 Rajender Shridhar working with Mool To prove accounts and identify signatures of A-2.
Chand Motors of A-2 at the relevant time.
44. PW-23 Ishwar Singh, property dealer. To prove transaction of sale.
45. PW-28 Parvesh Kumar Suri Director of M/s Regarding denial of any sale transaction and Surya Constructions Pvt. Ltd. taking of loan from Mahipalpur Branch.
46. PW-31 Kamal Sehgal To prove account opening form, taking loan and its repayment.
47. PW-34 Gautam Suri Connection with FDR.
48. PW-36 B. Prashad, Branch Manager SBI, To prove copies of challans, clearing register and Kapashera Branch. statement of account.
49. PW-37 D. K. Bansal running Chit Fund in 1994- To prove dealing with A-2 regarding chit, return of
95. amount, withdrawal slips etc.
50. PW-38 I. Krishnamohan Rao, Manager, SBI To prove his signatures as attesting witness on CC No. 532161/16 CBI Vs. S.K. Arora & Ors. Page No. 8 of 72 specimen writings.
51. PW-39 P. C. Sood To prove his signatures as attesting witness on specimen writings.
52. PW-42 Sandeep Chatterjee from SBI. To prove his signatures as attesting witness on specimen writings.
53. PW-45 Rajan Tandon, Relating to arranging of money for FDRs on the request of A-1.
54. PW-46 R. M. Ramu, Assistant Manager, Bank To prove his signatures as attesting witness on of Madura. specimen writings.
55. PW-47 Sanjiv Puri To prove introducing bank account of Kaushalya Devi in Mahipalpur Branch of OBC.
56. PW-48 Ram Saran, SBI Kapashera Branch To prove his signatures on the copies of documents given by him to CBI from the branch.
57. PW-54 Mukesh Jain To prove property documents which was in the name of his father in Gurgaon.
58. PW-55 Payal Vaswani To prove non-existence of Shree Dhar Associates at the given address.
59. PW-56 Ashok Mehra To prove that he had no business dealing with A-
360. PW-59 Satender Lamba To prove that he did not know A-2 and A-3 nor let out to them premises at Basant Lok.
61. PW-60 Sainath Choubal To prove his signatures on certain documents.
62. PW-61 Shanta Parmar To prove that Shree Associates never existed at the given address nor did he has any dealing with A-2 and A-3.
CBI & FSL Officials
63. PW-50 S. C.Dandriyal IO of the case.
64. PW-51 R. Chandra Asstt. Govt. Examiner of To prove his report on the documents regarding Questioned Documents. signatures and handwriting.
65 PW-62 B. K. Pradhan Dy. SP. Assisted the IO.
STANCE OF ACCUSED AND THEIR DEFENCE 4.0 Statements of accused persons were recorded u/s 313 Cr.P.C. in which they denied their involvement and pleaded innocence.
4.1. A-2 denied the entire evidence against him and took defence that a false and fabricated case had been made by CBI in collusion with bank officials and Sh. H.K. Suri. According to him, the documents placed on record by CBI were manipulated. He opted to lead defence evidence. A-3, A-4 and A-5 also took the CC No. 532161/16 CBI Vs. S.K. Arora & Ors. Page No. 9 of 72 same defence as taken by A-2. They all also desired to lead evidence in defence.
4.2 Five witnesses have been examined in defence.
4.3 DW-1 Sh. Rajiv Sharma (witness on behalf of A-5) is official of DRT-II, New Delhi and he has proved copy of the plaint Ex. DW-1/1 filed by OBC. DW-2 Sh. S.K. Sharma has been examined by his brother A-2 to show that he (DW-2 Sh. S.K. Sharma) was the actual Incharge of the workshop of Moolchand Motors at Basant Lok, Basant Vihar. He has also deposed about Sh. H.K.Suri as well as regarding deal between Mr. Suri and them. DW-3 Sh. Narender Kumar Gupta, Sr. Manager, OBC, Basant Lok Branch has been examined to show that relevant record was not traceable during investigation. He has also deposed about two of the accounts in question as well. DW-4 Sh. B.K. Dobhal, AGM, OBC, Basant Lok Branch has been examined to show that there was record pertaining to CC A/C 72 of Moolchand Motors which was deliberately held back. DW-5 Sh. Nand Kishore was Chief Manager, Mahipalpur Branch, OBC has also been examined to show that CBI did not produce some of the records before the court.
RIVAL CONTENTIONS 5.0 Ld. Sr. PP for CBI has contended that prosecution has been able to prove its case beyond reasonable doubt. He has stressed that all the accused were hand-in-glove and were acting in terms of a clear-cut conspiracy. He has argued that A-1 had abused and misused his office in furtherance of such conspiracy and derived benefit for self as well as for his co-accused. According to him, the loan amount (DL 46) was, in fact, a benami account of A-2 which stands amply proved. He has highlighted that vide voucher Ex. PW- 20/X-14, a sum of ₹ 5,16,384/- was withdrawn from the D/L account of Sh. H.K. Suri and the money was received by A-2 by signing as H. K. Suri on the reverse which fact also stood reconfirmed by CFSL report as per report Ex. PW 51/B1. It has been contended that the limit was eventually enhanced unauthorizedly to ₹ 88,40,000/- which CC No. 532161/16 CBI Vs. S.K. Arora & Ors. Page No. 10 of 72 suggests that A-1 and A-2 were acting in conspiracy with each other. It has been argued that the investigation report Ex. PW 16/1 (D-382) also indicts A-1 who had sanctioned the limit to Sh. H.K. Suri flouting all the rules and regulations of the bank.
5.1 According to Sh. Rao, various fictitious accounts and various benami accounts were opened and all these were being managed by the private accused persons with the active aid of A-1 S.K. Arora. According to CBI, by opening fictitious accounts and benami accounts, a large sum of money was withdrawn and ostensibly, all the accused happen to be beneficiary and all such private accused cannot be now permitted to simply pass on the buck to a dead man i.e. S.K. Arora (A-1) particularly when they all had, unmistakably, used the money which had landed in their accounts.
5.2 As regards A-3 Kamal Naresh Sharma, Sh. Rao has contended that A- 3 happens to be real brother of A-2 and he, in connivance with his brother, had opened a number of accounts including Current Accounts Nos. 1413, 1523 & 1571 with OBC. Overdraft facility to the tune of Rs. 32 lacs was provided in Current Account No. 1413 and the outstanding was transferred to Current Account No. 1523 and there was clear cut connection between these two accounts. There was overdraft of Rs. 28 lacs in Current Account No. 1523 which was adjusted from Account No. 1571.Sh. Rao has also argued that A-3 Kamal Naresh Sharma had also opened Current Account No. 1624 and he was the beneficiary of Demand Loan Account No. 38 and Demand Loan Account No. 1024. Sh. Rao has also asserted that Demand Loan Account No. 136 also belonged to A-3 Kamal Naresh Sharma which was used for clearing the outstanding in fictitious loan accounts i.e. DL No. 19, DL No. 101 & DL No. 125.
5.3 Regarding involvement of A-4, Sh. Rao has submitted that no OD was sanctioned in the current account no. 1445 of A-2 but amount of ₹ 4,88,134.10 was unauthorizedly and illegally transferred in said account as is evident from the CC No. 532161/16 CBI Vs. S.K. Arora & Ors. Page No. 11 of 72 copy of the statement of account Ex. PW-24/DA (D-203/2). It has been argued that accused has failed to rebut such evidence and there is a legal presumption against him as provided under Section 20 of P.C. Act. As regards A-5, Sh. Rao has submitted that current account No. 783 was opened by him which was introduced by A-2 and an amount of Rs. 1.50 Lacs was received in said account from benami DL account of H. K. Suri. A-5 also received Rs. 6.70 lacs and Rs. 10 lacs without any authorization and since he used such amount, he is also a co- conspirator.
5.4 Sh. S.P. Yadav has defended A-2 R.K. Sharma and A-3 Kamal Naresh Sharma.
5.5 According to him, the very foundation of prosecution case is based on incorrect facts as H.K. Suri was never a fictitious person. He was rather a well- known prestigious customer of OBC, which fact has been admitted by number of prosecution witnesses. According to him, H.K. Suri was even contacted during the investigation and he himself admitted that he had given various signed blank loan documents to S.K. Arora (A-1). Sh. Yadav has asserted that these blank documents were misutilized by A-1 S.K. Arora for himself and CBI has tried to project as if it was a benami account of A-2. He has also claimed that there is regular auditing in any bank and as per prosecution witnesses also, two branches in question were also regularly audited and the auditor's reports have been held back with some ulterior objective. He has also argued that for the purposes of transfer of amount from one account to the other, the consent of the person, whose account is going to be debited, is very much required but in the present case, there is nothing to show that any debit was made with knowledge and consent of either A-2 & A-3 and it seems quite probable that various transactions were carried out by A-1 S.K. Arora all by himself as A-1 had prepared and processed various vouchers. As regards pay orders, which had been issued in favour of the Indian Oil Corporation, it has been argued that these were made against cash amount and were not prepared with the help of transfer of any CC No. 532161/16 CBI Vs. S.K. Arora & Ors. Page No. 12 of 72 amount from any of the account of OBC. Sh. Yadav has also contended that merely because accused R.K. Sharma had introduced some accounts would not make him a culprit.
5.6 As regards A-3 Kamal Naresh Sharma, it has been contended that there is nothing to show that he had any concern with the accounts purportedly opened by M/S Shree Associates. According to defence counsel, relevant documents do not bear signatures of A-3 Kamal Naresh Sharma and rather such documents suggest that the accounts were opened by PW19 Sh. Rajender Sridhar. According to Sh. Yadav, PW19 Rajender Sridhar has categorically admitted during the trial that CA No. 1413 was opened by him and all the cheques drawn on said account were also bearing his signatures. Sh. Yadav has expressed his surprise as to why such Rajender Sridhar has been let off and why accused Kamal Naresh Sharma and R.K. Sharma have been projected as beneficiaries for such accounts of M/s Shree Associates. He has also argued that no outstanding liability is there either in the account of A-2 or A-3 or M/s Mool Chand Motors and, therefore, there is no question of embezzlement of any of the amount of complainant bank.
5.7 According to Sh. Yadav, black money of PW45 Rajan Tandon had been invested in illegal and unauthorized manner by A-1 S.K. Arora and instead of making Mr. Tandon an accused in the present case, CBI found these two brothers as an easy prey and have roped them in. It has also been argued that there were specific allegations against three bank officials i.e. Kalyan Singh, Balraj Singh and R.N. Ratan and they too were let off in a partisan manner and have been rather made prosecution witnesses. Sh. Yadav has asserted that even as per the case set up by CBI, all the alleged irregularities had been committed by A-1 S.K. Arora and there is nothing to show that A-2 & A-3 were in conspiracy with him. Thus, according to Sh. Yadav, investigation has not been carried out in the desired manner and the case has been made on the basis of conjectures and surmises and, therefore, A-2 R.K. Sharma and A-3 Kamal Naresh Sharma deserve CC No. 532161/16 CBI Vs. S.K. Arora & Ors. Page No. 13 of 72 acquittal.
5.8 Sh. M.P. Singh, Ld counsel for A-4 has argued that A-4 was having a current account No. 1445 with OBC Basant Lok branch and on 24.12.1993, amount of ₹ 4,00,000/- was transferred from this account to cash credit account (CC) No. 72 of M/s Mool Chand Motors. It has been contended that A-4 was having personal relation with A-2 and it was on his instructions only that the said amount was transferred to CC Account No. 72. Such amount was repaid with interest vide entry of ₹ 4,88,134.10/- . According to Sh. Singh, A-4 was hardly concerned about the source from where A-2 had transferred the funds. According to him, A-4 was informed by A-2 that 'due amount' had been transferred back to his account with interest. It has thus been claimed that A-4 has no role in the present matter. Moreover, there were no allegations against him either in the complaint or in special investigation report Ex. PW-16/A. Sh. Singh has also supplemented that even the statements of bank officials examined by the prosecution clearly reflected that there was no irregularity in the account of A-4.
5.9 Sh. Sanjiv Gupta, Ld. counsel for A-5 has submitted that in the vigilance report Ex. PW 1/1, 11 persons were named but charge sheet was eventually filed against five persons and the other six persons, who were allegedly similarly placed, were not charge sheeted. He claimed that CA 783 was opened by A-5 in 1990 whereas alleged transfers had taken place in his account in the year 1995. He has submitted that A-5, being builder, had done construction/repair work at the house and petrol pump of A-2 and , therefore, he was having business relation with A-2. It has been submitted that because of such relationship only, even the account had been introduced by A-2.
5.10 It has been argued that A-5 had nothing to do with the alleged cash payments of ₹ 6.70 lakhs and ₹ 10 lakhs coming from the account of Sh. H.K. Suri on 30.12.1995 and 08.01.1996 respectively as the corresponding debit vouchers were neither filled by him nor were bearing his signatures. Reliance has CC No. 532161/16 CBI Vs. S.K. Arora & Ors. Page No. 14 of 72 been placed over CFSL report Ex. PW-51/A as well.
5.11 It has also been argued bank had never taken any civil action against him. Rather as per deposition of DW-1 Sh. Rajiv Sharma, who has proved petition for recovery (Ex. DW-1/1) as filed by the bank regarding said entry of ₹ 10 lacs dated 08.01.1996, the respondent, from whom recovery is sought to be recovered, has been shown one Kamal Bhushan Sharma of M/s Mool Chand Motors and not A-5.
5.12 Regarding entry of ₹ 1,50,000/- dated 22.12.1995 from the alleged account of Sh. H.K. Suri, it has been submitted that A-5 was having business relations with M/s Mool Chand Motors since October 199 and vide entries dated 05.02.1994 and 28.02.1994, amount of ₹ 50,000/- and ₹ 1,00,000/- were transferred from his CA 783 to CC 72 of Mool Chand Motors and such liability was discharged by A-2 by directing transfer of Rs. 1.5 lacs from account of H.K.Suri. A-5 was simply bothered about his dues and never attempted to find out the source of such return. It has also been argued that A-2 confirmed him that he had deposited said money in his account on 22.12.1995.
5.13 Ld. counsel for A-5 has further submitted that as per Ex. PW- 21/D, vide entry dated 19.03.1997 ₹ 1,50,000/- was further transferred by the bank from the account of A-5 to sundry deposit and when A-5 objected to the same, such amount was again transferred to his account on 17.04.1997 from sundry account. It has been further agitated that ₹ 50,000/- from the account of Sh. H.K. Suri was also transferred to the account of Sh. Kalyan Singh (PW-7) who was a clerk in OBC, Basant Lok Branch. Sh. Gupta, learned Defence counsel has also supplemented that PW-7 Kalyan Singh had also claimed that he had given cash loan of ₹ 50,000/- to A-2 and towards repayment of the loan, A-2 gave him cheque of ₹ 50,000/- which bounced and later on A-2 informed him that money has already been credited in his account. Such credit was also from same account of CC No. 532161/16 CBI Vs. S.K. Arora & Ors. Page No. 15 of 72 H.K.Suri and if version of Kalyan Singh can be believed then, A-5 cannot be treated any differently.
EVALUATION OF EVIDENCE 6.0 I have given my thoughtful and anxious consideration to the rival contentions and carefully gone through the entire record.
6.1 I have also considered the written arguments submitted by the concerned counsels.
6.2 The following prime accounts had been used for cheating the bank and siphoning off the amount totaling Rs. 1,27,76,687.
6.3 Break-up is as under:-
Sr. Name of Account Principal Interest Total
No. (As on 31.03.1997)
1 Demand Loan account (DL No. 46) 43,911,48 16,66,871 60,58,019
in the fictitious name of H.K. Suri
2 Shree Associates 40,22,960 6,42,255 46,65,215
(CA 1413 and 1523 at Basant Lok
and CA 1571 at Mahipalpur)
3 K.N. Sharma 6,89,072 2,76,421 9,74,493
(Mahipalpur)
DL 136 for adjusting three fictitious
DL accounts opened in Basant Lok
i.e. DL 99 ( in name of Vinod Kumar
Sajjan Devi), DL 101(In name of
Sneh Gupta and V.K. Gupta and DL
125 ( in name of K.K. Sharma)
4 K.P. Sharma/K.N. Sharma (Basant 9,95,550 83,410 10,78,960
Lok)
CA 1624 and DL 38 and DL 1024
6.4 It becomes quite manifest that as per CBI, there are various accounts
which had been opened either in the fictitious names or were benami accounts being managed by accused persons and these accounts were used for siphoning off the public money.
CC No. 532161/16 CBI Vs. S.K. Arora & Ors. Page No. 16 of 72 6.5 Alleged Demand Loan Account No. 46 is of vital importance in the present context and it needs to be seen whether it was actually managed by A-2 R.K. Sharma or not. This needs to be evaluated by scrutinizing the various entries made in said account as well.
6.6 Accounts of M/s Shree Associates are also required to be scrutinized besides many other loan accounts in order to assess the role of A-3 K.N. Sharma.
6.7 The role and involvement of accused Vikram Singh (A-4) and accused Kulbhushan Sharma (A-5) is also required to be firmly assessed.
6.8 I need not remind myself that there is no strait-jacket formula to decode conspiracy. On most of the occasions, it can only be unearthed and detected by number of circumstances as there would rarely be any direct and specific evidence to show conspiracy. While dwelling on the concept of conspiracy Hon'ble Apex Court in Mohd. Husain Umar Kochra v. K.S. Dalipsinghji, (1969) 3 SCC 429 held that in conspiracy, agreement is the gist of the offence and a common design and common intention in furtherance of the common scheme is necessary. Each conspirator plays his separate part in one integrated and united effort to achieve the common purpose. It was enounced that conspiracy may develop in successive stages and new techniques may be invented and new means may be devised, and a general conspiracy may be a sum up of separate conspiracies having a similar general purpose, the essential elements being collaboration, connivance, jointness in severalty and coordination.
6.9 There can be number of devices and techniques adopted to achieve the common goal of the conspiracy. There can be division of performances in the chain of actions with one object to achieve the real end, of which every collaborator need not be aware but in which each one of them would be interested. There must be a unity of object or purpose but there may be plurality of means, sometimes even unknown to one another, amongst the conspirators. The CC No. 532161/16 CBI Vs. S.K. Arora & Ors. Page No. 17 of 72 only relevant factor is that all means adopted and illegal acts done must be to fulfill the object of the conspiracy. Even if some steps are resorted to by one or two of the conspirators without the knowledge of the others, it will not affect the culpability of those others when they are associated with the object of the conspiracy.
6.10 The agreement which is the quintessence of criminal conspiracy can be proved either by direct or by circumstantial evidence or by both and it is a matter of common experience that direct evidence to prove conspiracy is rarely available.
STATUS OF ACCOUNT OPENED IN THE NAME OF H.K. SURI 7.0 As per the specific case set up by the prosecution, A-1 had sanctioned a demand loan account (DL No. 46) on 15.09.1995 of Rs. 5,16,384/-, on papers, to one Sh. H.K. Suri. This particular loan account seems to be the prime most and virtually a fountain head with respect to the many other transactions - whether of credit or debit. Sh. Rao has contended that such account was, in fact, a benami account of A-2 which had been opened in connivance with A-1 and such account was permitted to be operated as if it was having unlimited OD facility. There are number of withdrawals. It has been claimed that various withdrawals were related to A-2 or to his close relatives/associates/co-accused which indicates that all the accused were acting in league and were hand in gloves.
7.1 Naturally, if any loan account is to be opened, there has to a request and there has to be some sort of security as well.
7.2 However, in relation to alleged account no. 46, there is no application regarding said demand loan. There are no LD-4 and LD-5 forms. There is no corresponding security of any nature whatsoever in lieu of such loan facility. It CC No. 532161/16 CBI Vs. S.K. Arora & Ors. Page No. 18 of 72 seems that no security was ever obtained while disbursing the loan of Rs. 5,16,384/-. There is one more interesting aspect which I cannot resist commenting upon. Whenever, any such facility is sought and is sanctioned by the bank, some account number is required to be given. No account number is found mentioned in the initial two ledger-sheets pertaining to the aforesaid alleged benami account.
7.3 Let me now come to ledger sheets of said account.
7.4 Ledger-sheets pertaining to such demand loan are D-3/1 to D-3/4. D- 3/1 is 'Term Loan Ledger-Sheet' and the name of the account holder seems to have been mentioned as 'H.K. Suri'. I am compelled to say so because of the overwriting in the initials due to which, it is not amply clear whether the account was opened in the name of H.K. Suri or M.K. Suri or N.K. Suri. Such overwriting is very much evident at portion X of Ex. PW16/DF (D3/1). Nobody knows as to what was the purpose of demand loan. Neither the address of the borrower nor other particulars are found mentioned in the relevant columns. There is nothing to show as to what was the security, if any, taken against said loan.
7.5 Sanctioned limit of such loan has been shown as Rs. 5,16,384/- which seems to have been increased to Rs. 18 lacs but nobody knows when and on what basis. Moreover, as per the specific case of prosecution, the loan amount was sanctioned on 15.09.1995 and a sum of Rs. 5,16,384/- was disbursed to the borrower same day. Cash demand voucher has been proved as Ex. PW20/X14 (D-4) which allegedly bears signatures of A-2 which he signed as H.K. Suri at point Q1 on the reverse.
7.6 I again lay stress on the date of sanction of such loan account. It had been sanctioned on 15.09.1995.
CC No. 532161/16 CBI Vs. S.K. Arora & Ors. Page No. 19 of 72 7.7 In any ledger, the entries are required to be maintained in chronological order. Though there, is first debit entry of Rs. 5,16,384 on 15.09.1995, yet the confusing aspect is that the next entry, which should have been of a date subsequent to 15.09.1995, is rather found to be of 14.09.1995. Vide such entry dated 14.09.1995, another sum of Rs. 2,83, 616/- was disbursed to the borrower. The total of these two entries came to Rs. 8 lacs which was beyond the sanctioned limit. There is a possibility that such limit was shown enhanced to Rs. 8 lacs by cutting the initial figure of Rs. 5,16,384/- and then even such Rs. 8 lacs might have been shown as Rs. 18 lacs by adding numerical '1' before numerical '8'. There is no corresponding request from borrower either for grant or for increase in limit. Undoubtedly, accused S.K. Arora was at the helm of affairs and he seems to have done his job in the most slipshod manner which is suggestive of his direct involvement with respect to the siphoning off of the funds. Unfortunately, he is dead.
7.8 As already noticed above, no account number is mentioned on first page of such term loan ledger-sheet Ex. PW16/DF. Such ledger sheet contains entries from 14.09.1995 till 17.01.1996. As on last date, i.e. 17.01.1996, said loan account (having no number as such) was showing outstanding balance of Rs. 88,30,929.10. This is, naturally, an enormous outstanding more particularly way back in the year 1996. Barring two credit entries, all the other entries are debit entries. The concerned bank official did not show any respect or concern to the public money and permitted withdrawal and transfer of the funds on drop of hat.
7.9 First page of ledger-sheet has been proved as Ex. PW16/DF and the second as Ex. PW24/1. Such second page has start date as 17.01.1996 and it is also quite evident that sanctioned limit of the loan which otherwise was Rs. 88,39,92,910/- has been converted to Rs. 88,40,000/- by making overwriting against the column of "limit sanctioned" but nobody knows as to who is author of such overwriting. There are no initials against such overwriting. Name of borrower is again not clear. It is hard to make out whether the borrower is shown CC No. 532161/16 CBI Vs. S.K. Arora & Ors. Page No. 20 of 72 as H.K. Suri or M.K. Suri. Such page contains entries upto 20.03.1996 when the outstanding swelled to Rs. 94,71,998.10.
7.10 Third page of such ledger-sheet has been proved as Ex. PW16/DG and this seems to have been reconstructed on the basis of some available entries. It depicts the account number as 46. As per this ledger-sheet, the name of account holder has been shown as M.K. Suri and balance as on 01.03.1996 is shown as 94,71,008.10 which eventually reduced to Rs. 57,71,949.10 on 27.12.1996 as there are following deposit entries:-
S. No. Date Amount Manner 1 11.07.1996 Rs. 8,00,000/- By Cash 2 11.07.1996 Rs. 8,00,000/- By Cash 3 11.07.1996 Rs. 8,00,000/- By Cash 4 11.07.1996 Rs. 7,00,000/- By Cash 5 20.07.1996 Rs. 9,79,599/- By Transfer 6 03.08.1996 Rs. 4,90,000/- By Transfer 7.11 PW16 Ashok Verma has admitted in his cross-examination that such
ledger-sheet Ex. PW16/DG was prepared/recast by him on the basis of vouchers/record available in the Branch. He claimed that original ledger sheet was not available. He also claimed that he could not say whether H.K. Suri, M.K. Suri and M.K. Suri were the same persons or different persons. Interestingly, as per Annexure 1 of the charge-sheets which contains 29 entries pertaining to said loan account, there does not seem to be any voucher or deposit slip with respect to any of the cash deposit entries of 11.07.1996. If there was no cash deposit vouchers or any other document, it is really difficult to fathom as to on what basis PW16 Ashok Verma had prepared the ledger-sheet Ex. PW16/DG. After all, it has been reconstructed on the basis of some available voucher. No such voucher has seen light of the day. Sh. Rao has also not been able to point out any such CC No. 532161/16 CBI Vs. S.K. Arora & Ors. Page No. 21 of 72 voucher of 11.07.1996.
7.12 Though it has been claimed by CBI that account had been opened in the name of H.K. Suri as if H.K. Suri was a fictitious person, fact remains, that there was indeed a person with the name of H.K. Suri. In this regard, reference be made to the testimony of several prosecution witnesses.
7.13 PW4 Azad Singh, who was posted in Mahipal Pur Branch and thereafter transferred to Basant Lok Branch, Oriental Bank of Commerce, has categorically deposed that there was an account of H.K. Suri in their Branch. PW16 Sh Ashok Verma had carried out the investigation of the Branch and he was also involved with the regular inspection of the Branch. He admitted in his cross-examination that H.K. Suri was an old account holder in the bank. When the ledger-sheets were shown to him, he did claim that such account was opened on 15.09.1995 by writing as advance of Rs. 5,16,384. He also claimed that he could not say as to how the name of the borrower got changed from H.K. Suri to M.K. Suri. He did admit that name of H.K. Suri had been converted into M.K. Suri. PW20 Sh. Vijay Kumar Sharma, who was posted as Manager in Mahipal Pur Branch has also deposed that H.K. Suri was having account with their Branch. Reference be made to his testimony dated 15.12.2009 in which he claimed that he had even met him once.
7.14 Similarly, reference be made to the testimony of PW26 Sh. Rajiv Kumar. He joined Basant Lok Branch as Probationary Officer on 16.03.1996 and worked there till April 1996. During his tenure, A-1 was the Branch Manager and after A-1 was transferred from there, Sh. R.N. Ratan joined as Branch Manager in Basant Lok Branch. He worked under Sh. Ratan till November 1997. According to him, he worked in Loan Section under the supervision of Branch Manager A-1 S.K. Arora and in the Loan Section, besides him, Sh. Mukul Verma and Sh. Rajesh Gupta (PW-25) were also the Probationary Officers. According to him, OD & Demand Loan used to be looked after by S.K. Arora himself. He deposed that CC No. 532161/16 CBI Vs. S.K. Arora & Ors. Page No. 22 of 72 S.K. Arora used to keep all the documents with him in his custody. He also admitted that H.K. Suri was having account at Mahipal Pur Branch. In his deposition dated 19.10.2011, he claimed that he had heard that there was a person with the name of H.K. Suri when he was posted at Basant Lok Branch but he claimed that he did not know him personally. He also learnt that H.K. Suri had let out some premises to Oriental Bank Of Commerce.
7.15 Reference be also made to the testimony of PW28 Sh. Parvesh Kumar Suri and PW30 Sh. Gautam Suri. PW28 Parvesh Kumar Suri happens to be brother of H.K. Suri and Gautam Suri happens to be his nephew. PW56 Sh. Ashok Mehra has also deposed that he had met H.K. Suri on one or two occasions in the bank. So much so, PW58 Sh. R.N. Ratan, who got transferred to Basant Lok Branch in April 1996 from Mahipal Pur Branch, has also admitted that he knew H.K. Suri who was valuable client of Oriental Bank of Commerce and one premises of Sh. H.K. Suri/his family had been taken on rent by Oriental Bank of Commerce. He also claimed that he was aware about some property deal between H.K. Suri and R.K. Sharma whereby property of R.K. Sharma sought to be purchased by H.K. Suri. Such deal was in respect of flat in Gurgaon or about land situated in/around Gurgaon and the worth of the deal was Rs. 1 crore. He also claimed in his cross-examination that such land deal had been got finalized through S.K. Arora.
7.16 Thus, though, strictly speaking, H.K. Suri may not be a fictitious person yet it needs to be seen whether such Mr. Suri had any connection with said loan account or not.
7.17 Curiously, such H.K. Suri was examined by CBI during the investigation. His statement under Section 161 Cr.P.C. was also recorded. His specimen handwriting and signatures were also taken during the investigation. In his statement under Section 161 Cr.P.C., he claimed that he had signed blank loan documents and had given the same to S.K. Arora. I would also like to point CC No. 532161/16 CBI Vs. S.K. Arora & Ors. Page No. 23 of 72 out that there is one application for financial assistance which has been proved as Ex. PW26/DC (D-61). It bears signatures of H.K. Suri at point Q142, Q143 & Q144. There is also one blank promissory note having signatures of same H.K. Suri at point Q139 & Q140. Such promissory note has been proved as Ex. PW26/DB (D-6). There is every possibility that Sh. Suri might have been also duped by A-1. Unfortunately, before, he could appear in witness box, he expired.
7.18 I have also seen testimony of PW25 Sh. Rajesh Gupta. He joined as Probationary Officer (Trainee) in Basant Lok Branch on 19.11.1994 and worked under A-1 during the relevant period. According to him, Sh. Rajeev Kumar (PW26) was the Loan Officer of the Branch and A-1 S.K. Arora was overall incharge of the Branch including loan matters. He worked as trainee for two months and he also claimed to have made debit entries dated 14.09.1995 & 15.09.1995 in ledger Ex. PW16/DF. According to him, these entries were made on the basis of vouchers passed by A-1. Fact, however, remains that he himself also admitted in cross-examination that voucher dated 14.09.1995 for Rs. 2,83,616/- was not available. He claimed that he had written the name of the account holder as H.K. Suri on the basis of voucher Ex. PW20/X14. He claimed that in Ex. PW 20/X-14 though alphabet looked like M, he treated as H but later on converted the same as M and made changes in the first page of the ledger also. Surprisingly, he also claimed that being trainee, he had no guts to ask A-1 S.K. Arora about the aforesaid. In his cross-examination, he admitted that Demand Loan is released only after the applicant/borrower had signed LD4 & LD5 forms. According to him, as per procedure, Loan Officer gets such documents signed in his presence and all such documents also used to be entered 'Document Register' and Manager (Loan) used to give certificate that the documents had been executed in his presence and then Branch Manager used to verify the same and sign in the register. He admitted that he had not seen the loan documents pertaining to said Demand Loan of H.K. Suri or M.K. Suri clarifying further that he had only opened a ledger account.
CC No. 532161/16 CBI Vs. S.K. Arora & Ors. Page No. 24 of 72 7.19 Be that as it may, only minute evaluation of various entries appearing in said account would be indicative of the fact as to who is the actual holder of said account.
ENTRIES RELATED TO LOAN ACCOUNT NO. 468.0 Following are the details of the transactions carried out in said loan account.
Transaction in the Demand Loan Account of H.K. Suri/M. K.Suri Sl. Date Amount Amount In which Remarks (as per charge sheet) N (Dr.) (Cr.) account o.
1 14/9/95 283616 - Cash Paid Voucher not available 2 15/9/95 516384 - Cash Paid Voucher prepared & passed by Sh. S. K. Arora. Name on voucher not clear 3 15/10/95 488134.1 - Transferred Voucher prepared & passed by Sh. S. K. to CA 1445 Arora and entry also made by him.
of M/s V. A.
Construction
4 18/10/95 500000 - Transferred Voucher prepared & passed by Sh. S. K.
to CA 1624 Arora
of Kamal
Naresh
Sharma
5 19/10/95 350000 - Tr. to CA Voucher prepared & passed by Sh. S. K.
1624 of Arora
Kamal
Naresh
Sharma
6 19/10/95 505808 - Tr. to DL 11 Voucher not available
of Hari
Singh
7 26/10/95 - 1000000 Tr. from 2 FDR of Chirag Suri and Aman Suri made in
FDRs of 5 cash on 18/10/95. Pay in Slip for cash
lacs each voucher prepared by S. K. Arora
bearing No.
416232/871/
95 and
416233/872/
CC No. 532161/16 CBI Vs. S.K. Arora & Ors. Page No. 25 of 72
95
8 12/11/95 50000 - Tr. CA 1766 Voucher prepared & passed by Sh. S. K.
of K. B. Arora
Distributors
9 15/11/95 1200000 - - Voucher not available. Entry in the ledger
sheet made by S. K. Arora
10 14/12/95 20000 - - Voucher not available
11 29/10/95 300000 - Tr. to CA Voucher prepared & passed by Sh. S. K.
1766 of K. Arora
B.
Distributors
12 18/12/95 1250972 - For Voucher prepared & passed by Sh. S. K.
issuance of Arora. TPO issued for adjusting DL 69 of R.
1 TPO of K. Sharma at Mahipalpur Branch and pay
Rs. 432000 order issued favouring IOCL on account of
and 5 pay Moolchand Motors.
orders for
Rs. 133842,
82829,
200767,
200767,
200767,
200767
13 18/12/95 60631 - Tr. to DL Voucher passed by Sh. S. K. Arora and
Kamal entry made verified by him voucher prepared
Naresh by Rajiv Kumar.
Sharma
14 18/12/95 2500000 - Tr. Rs. Voucher passed by Sh. S. K. Arora, voucher
1473340 in prepared by Rajiv Kumar.
DLR 137 of
Rajinder
Sharma &
Rs.
1026660 in
DL 38 of
Kamal
Naresh
Sharma
15 18/12/95 - 507397 Tr. From FDR No. 416234/873/95 dt. 18/10/95 made
FDR of Rs. against cash. Cash slip prepared by S. K.
5 lacs of Arora.
Gautam Suri
16 22/12/95 150000 - Tr. to CA Voucher prepared & passed by Sh. S. K.
783 of K. B. Arora
Enterprises
CC No. 532161/16 CBI Vs. S.K. Arora & Ors. Page No. 26 of 72
17 22/12/95 50000 - Tr. to SB Voucher passed by Sh. S. K. Arora
8288 of
Kalyan
Singh
18 30/12/95 670000 - Cash paid, Voucher prepared & passed by Sh. S. K.
name not Arora. Received by Kulbhushan Sharma
clear
19 30/12/95 250000 - Cash paid to Voucher prepared & passed by Sh. S. K.
R. K. Arora
Sharma
20 8/1/96 1000000 - Cash paid, Voucher prepared & passed by Sh. S. K.
name not Arora . Received by Kulbhushan Sharma
clear
21 5/2/96 463000 - Cash paid to Voucher prepared & passed by Sh. S. K.
Devender Arora
Bansal
22 7/2/96 - 40500 Cash Pay in slip for cash deposit by S. K. Arora
deposited
23 19/2/96 - 100000 Cash Pay in slip for cash deposit prepared by S.
deposited K. Arora
24 11/7/96 - 800000 Cash -
deposited
25 11/7/96 - 800000 Cash -
deposited
26 11/7/96 - 800000 Cash -
deposited
27 13/7/96 - 700000 Cash Pay in slip for cash deposit prepared by R.
deposited N. Rattan
28 20/7/96 - 979500 Tr. from TPO issued from SB a/c 12508 at
Mahipalpur Mahipalpur Branch
Branch by
TPO No.
662/96
29 3/8/96 - 490000 Tr. from TPO issued from SB a/c 12508 at
Mahipalpur Mahipalpur Branch.
Branch by
TPO No.
696/96
CC No. 532161/16 CBI Vs. S.K. Arora & Ors. Page No. 27 of 72
8.1 Let me now take deep plunge into the documents produced during the
trial for evaluating each said entry.
8.2 I must, however, appreciate the efforts put in by Sh. Rao as well as
defence counsels who, in the most fair and unpartisan manner, took me through all of those.
1. Debit entry dated 14.9.95 of Rs. 2,83,616/-
8.2 There is, even as admitted by CBI, no voucher with respect to said entry.
8.3 It is simply found mentioned in the ledger sheet. Neither any debit voucher nor any credit voucher is available which may substantiate said entry. Moreover, the loan account was allegedly opened on 15.9.95 and there is not enough of clarity as to how the payment was made on 14.9.95, i.e. before the opening of loan account. Moreover, it cannot be said with any certainty as to who was the eventual beneficiary of said withdrawal. Nobody knows who stood benefitted and how. Naturally, it would have been tough for Mr. Arora to have explained the same had he been alive. However, it cannot be automatically held that said amount was pocketed by A-2.
8.4 Therefore, CBI cannot dig out any advantage from said entry.
2. Debit entry dated 15.9.95 of Rs. 5,16,384/-
8.5 As per CBI, there is a Voucher for said entry and such voucher indicates the complicity of A-2 and also demonstrates that he was benami-holder as well as the beneficiary of withdrawal. Such voucher has been proved as Ex.
CC No. 532161/16 CBI Vs. S.K. Arora & Ors. Page No. 28 of 72 PW 20/X-14. On the reverse of such voucher, there are signatures of A-2 at point Q-1. Sh. Rao has contended that such signatures were found to be of A-2 as per the specific report of Handwriting Expert.
8.6 Defence has baldly denied the same.
8.7 The report of handwriting expert PW 51 Sh. R Chandra could not be impeached in any manner by defence. Undoubtedly, the specimen signatures of A-2 were taken twice i.e. on 23.2.2000 (S-100 to S-106) and 2.8.2000 (S-328 to S-332) but that would not, by itself, smack of any malafide. I have seen deposition of Sh. Chandra. He has proved his report as Ex PW 51/A-1 and Ex PW 51/B-1 and reasons for arriving at such conclusion as Ex PW51/A-2 and Ex PW 51/B-2 respectively. There is virtually no cross-examination. Defence has also not examined any expert from their side. Thus, such report nails down A-2 and proves that he had signed at point Q-1.
8.8 Naturally, if A-2 was not the beneficiary of said amount where was the requirement of his signing as recipient on the reverse?
3. Debit entry dated 15.10.95 of Rs. 4,88,134.10 8.9 Relevant Voucher has been proved as Ex. PW 16/DN. As per Sh. Rao, the withdrawn amount had landed in CA 1445 of M/s V. A. Construction of A- 4 Vikram Singh and A-4 has not been able to give any explanation as to on what account, he had received the said money.
8.10 I have seen the voucher as well as the relevant record related to said entry/voucher. Undoubtedly, such voucher does not contain signature of anyone except for A-1. As per defence version, said CA (Current Account) 1445 of M/s V. CC No. 532161/16 CBI Vs. S.K. Arora & Ors. Page No. 29 of 72 A. Construction did belong to A-4 Vikram Singh who even does not dispute that said amount of Rs. 4,88,134.10ps was transferred to his said current account.
8.11 Statement of account of M/s V. A. Construction has been proved as Ex. PW 24/DA (D-203/1). Defence counsel for A-4 has, however, contended that a sum of Rs. 4 lacs was transferred by M/s V. A. Construction on 24.12.93 to CC Account No. 72 which belonged to M/s Mool Chand Motors and he eventually received back said amount of Rs. 4,88,134.10ps on 15.10.95. According to him he was told by A-2 that the entry had been adjusted by virtue of aforesaid transfer. Thus, according to A-4, he cannot be presumed to be beneficiary in any sense and he only received back his dues and the onus is on A-2 to explain as to how and why he used the alleged benami account for settling his dues. Sh. Rao has, on the other hand, re-asserted that there is clear interconnection between all the accused and in particular amongst A-1, A-2 and A-4.
8.12 As per A-2, such assertion of A-4 is incorrect and a sum of Rs. 1,15,000/- was in fact transferred back to the account of M/s V. A. Construction from CC 72 on 30.12.1993.
8.13 Be that as it may, fact remains that in absence of any further document, A-4 cannot be saddled with any liability on said account. Rather, it is quite evident that A-2 must have directed A-1 to make said so as to somehow obviate his own liability. Onus lies on A-2 to explain as to why he transferred said amount to the account of M/s V.A. Constructions. His simple and bald denial would not make any impact at all.
CC No. 532161/16 CBI Vs. S.K. Arora & Ors. Page No. 30 of 72
4. Debit entry dated 18.10.95 of Rs. 5,00,000/-
&
5. Debit Entry dated 19.10.95 of Rs. 3,50,000/-
8.14 As regard these two entries, according to the case of prosecution, the total amount of Rs. 8,50,000/- was transferred from the said DL account No. 46 to current account no. 1624 of A-3. Sh. Rao has contended that A-3 is clear beneficiary of said substantial amount and thus he is also evidently, a co- conspirator.
8.15 Relevant vouchers are Ex. PW 20/X-22 (D-13) and Ex. PW 20/X-21 (D-12).
8.16 Admittedly these two vouchers bear signature of none else except for Sh. S.K.Arora. Sh. Arora (A-1) signed as authorised officer at point 'A' on said two vouchers. Reference in this regard be also made to testimony of PW-20 Vijay Kumar Sharma who has categorically claimed that these vouchers were in the handwriting of accused S.K. Arora and were bearing his signatures. These are transfer vouchers meant for internal banking and, therefore, as per CBI, there does not seem to be any requirement of signature of any private person/account holder except for the concerned bank official.
8.17 As far as said CA No. 1624 is concerned, it was admittedly opened by accused Kamal Naresh Sharma (A-3). Application form for opening current account has been proved as Ex. PW 20/W (D-210). As per PW-20 Vijay Kumar Sharma, the account was allowed to be opened by Sh. S.K. Arora. Specimen signature card has been proved as Ex. PW 49/32.
8.18 Statement of account of said current account has been proved as Ex. PW 24/DB where these two entries are also actually reflected. It is thus apparent that a sum of Rs. 5,00,000/- and a sum of Rs. 3,50,000/- had been deposited in CC No. 532161/16 CBI Vs. S.K. Arora & Ors. Page No. 31 of 72 said current account of A-3 on 18.10.1995 and 19.10.1995 respectively.
8.19 Ld. defence counsel for A-3 has contended that these are instances of unauthorised transfer and A-3 never came to know about any such deposit in his account.
8.20 Such contention has been refuted by Sh. Rao. According to Sh. Rao, the account holder was very much aware about the deposit entry because on said two dates itself, equivalent amount has been withdrawn by clearing.
8.21 I fully agree with said contention of CBI and it is quite evident that A-2 as well as A-3 (his brother) had been working in league with Sh. Arora. There was apparent connection of A-2 and A-3 with said DL Account no. 46 else why a sum of Rs. 8.5 lacs would have been transferred to account of A-3 by A-2.
6. Debit Entry dated 19.10.95 of Rs. 5,05,808/-
8.22 According to case of prosecution, no such demand loan account, having number as DL-118, was ever opened by Hari Singh. Sh. Rao has contended that it is rather a fictitious account which was held benami by A-2 R.K. Sharma.
8.23 Relevant ledger sheet of said loan account is Ex. PW 20/X-54 (D-
121). It contains one credit entry of Rs. 5,05,808/- which seems to have been made on 19.10.1995. However, the particulars columns of said ledger sheet are not conveying any sense as to from where such amount had landed. Moreover, there is no voucher with respect to said transaction. Even in the corresponding ledger Ex. PW 16/DF, the name of Hari Singh seems to have been mentioned later on in red ink and there is some overwriting with respect of date also which does not seems to be in good taste.
CC No. 532161/16 CBI Vs. S.K. Arora & Ors. Page No. 32 of 72 8.24 According to Sh. Rao said account had been opened on the basis of promissory note Ex. PW 20/X-56 (D-122). Application-cum-authority letter in relation to such demand loan/promissory note has been proved as Ex. PW 20/X- 57 (D-123).
8.25 Said two documents purportedly bear signatures of Hari Singh at point 'Q-129' to 'Q-137'. As per Sh. Rao, the Handwriting Expert Report evidently indicates that such questioned signatures had been put by none other than A-2 R. K. Sharma who showed the audacity of signing as Hari Singh and therefore, it becomes amply clear that DL 46 was a benami account held by A-2. As per Sh. Rao, said account had been opened in connivance with A-1 to siphon off the public money and since the beneficiary of the said amount is none other than A-2, it has to be necessarily inferred that he was acting in conspiracy with Sh. Arora.
8.26 Sh. Rao has also demonstrated the connection between said benami account of Hari Singh and A-2 with the help of other material as well. He has argued that A-2 had opened up one current account way back on 12.6.1987 with Basant Lok branch of OBC. Such account was given number as CA No. 389. Account opening form has been proved as Ex. PW 49/16 (D-161) which bears signature of R. K. Sharma. Statement of account of said CA No. 389 has also been proved as Ex. PW 26/2 (D-162). It has been argued that if the statement of account Ex. PW 26/2 is read in conjunction with ledger sheet of said fictitious account, opened in the name of Hari Singh, which has been proved as Ex. PW 20/X-54 and X-55, it would become abundantly clear that said fictitious account was owned by A-2 as the amount has been transferred from said fictitious account to the said actually owned current account of A-2 which makes him automatic beneficiary. In this regard reference has also been made to vouchers Ex. PW 20/X-46 (D-113) and Ex. PW 20/X-47 (D-114) whereby a sum of Rs. 4,30,000/- was received by A-2 in his said current account No. 389 on 4.12.1992.
CC No. 532161/16 CBI Vs. S.K. Arora & Ors. Page No. 33 of 72 8.27 Defence has contested the same by claiming that there is no corresponding entry in Ex PW26/2 (D-162) which may indicate that A-2 R. K. Sharma was a beneficiary in any manner whatsoever.
8.28 Though, it is a computer generated printout having requisite certification by the concerned branch official, there is some overwriting over these printouts as well. According to CBI, entry dated 30.10.1992 and entry dated 2.1.1993 include the said amount of Rs.4,30,000/-. I have seen the testimony of PW-26 Sh. Rajiv Kumar. He has tried to explain the overwriting by claiming that there was a star mark (*) with respect to entry dated 30.10.1992 in Ex. PW 26/2 which denoted that as per computer, there was some missing entry/mismatch. He went on to depose that he himself had made endorsement in his handwriting on Ex. PW 26/2 to the effect that the difference between the two entries was of Rs. 4,30,000/- and, therefore, the missing credit entry of Rs. 4,30,000/- has to be assumed of none else than the one coming from said fictitious account.
8.29 According to Sh. Yadav, such assertion of CBI is incorrect on the face of it as even if the aforereferred subtraction is made from these two entries, the difference in amount would come to Rs. 3,47,076/- and not Rs.4,30,000/- and, therefore, there cannot be said to be any interconnection between the two accounts. Said calculation has been cross-checked by Sh. Rao and even he admits that after deduction, the difference in amount would not come as Rs. 4,30,000/-.
8.30 In view of aforesaid, the explanation given by PW-26 Rajiv Kumar, to said extent at least, would not inspire much confidence.
8.31 As per Sh. Yadav, the vouchers in question, i.e. D-113 and D-114 have been manufactured subsequently to give some unwarranted boost to the case of prosecution as these are admittedly duplicate vouchers. It has been argued that these have been created later on just to implicate the accused and CC No. 532161/16 CBI Vs. S.K. Arora & Ors. Page No. 34 of 72 prosecution has no explanation as to where the original vouchers are. He also contends that transfer should always precede some authorization but in the present case there is no authorization of any kind from the person who suffered debit entry. It has also been contended that even the branch name is not mentioned and number of DL account of Hari Singh has also not been mentioned anywhere.
8.32 However, fact remains, that report of Handwriting expert evidently suggests that said fictitious account had been opened up by A-2 only. His signatures on account opening form also stand proved. Thus, for all practical purposes, he seems to be the actual beneficiary.
7. Credit Entry dated 26.10.95 of Rs. 10,00,000/-
8.33 This happens to be a credit entry of Rs. 10 lacs.
8.34 According to prosecution, amount was transferred from two FDRS to the said loan account of H.K. Suri. I have seen the two FDRs in question. These have been proved as Ex. 20/X24 (D-116) and Ex. 20/X25 (D-17). These FDRs are bearing folio numbers 4258 & 4259 respectively and are dated 18.10.1995 and are of Rs. 5 lacs each.
8.35 As per first FDR Ex. PW20/X20, fixed deposit was in the name of Chirag Suri whereas as per the other FDR, fixed deposit was in the name of Aman Suri. Period of FDR was sixty days and the rate of interest was 9 per cent per annum.
8.36 It is not clear as to on what basis, these two FDRs were got prematurely encashed and the total amount of Rs. 10 lacs, without any corresponding interest, was deposited in the said loan account on 26.10.1995. Vouchers in this regard have been proved as Ex. PW16/DA (D-14) and Ex.
CC No. 532161/16 CBI Vs. S.K. Arora & Ors. Page No. 35 of 72 PW16/DB (D-15).
8.37 PW16 Sh. Ashok Verma, concerned bank official has deposed that these FDRS were not discharged by the concerned depositors i.e. Chirag Suri & Aman Suri. There was no debit or credit confirmation. These vouchers bear signatures of PW26 Rajiv Kumar. He was the one who had also made corresponding entries of Rs. 10 lacs on 25.10.1995 in ledger Ex. PW16/DX. He also admitted that Chirag Suri & Aman Suri had deposited cash amount of Rs. 5 lacs each on 16.10.1995 and accordingly FDRs were prepared but he has not bothered to throw any light as to on what basis FDRs were got encashed prematurely. I have, seen the testimony of PW28 Parvesh Kumar Suri and PW34 Gautam Suri but their testimony, too, does not throw any light with respect to premature encashment of said two FDRs.
8.38 Very clearly, the concerned bank officials i.e. PW 26 Rajiv Kumar and Ms. Lily Gahoi besides Mr. Arora showed no respect to the hard-earned money of their customers. There was no reason to have gone for pre-mature encashment without any instructions. To that extent, even the FDR holders can be said to be victims. These FDR holders i.e. Chirag Suri and Aman Suri have not graced the witness box as they were not even cited as prosecution witnesses. I feel pity for them as well.
8. Debit Entry dated 12.11.95 of Rs. 50,000/-
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11. Debit entry dated 29.10.95 of Rs. 3,00,000/-
8.39 As per prosecution, an amount of Rs. 50,000/- and another amount of Rs. 3,00,000/- were transferred to Current Account No. 1766 of M/s K. B. Distributors and vouchers in this regard were prepared and passed by accused S. K. Arora.
CC No. 532161/16 CBI Vs. S.K. Arora & Ors. Page No. 36 of 72 8.40 As per Ld. Sr. PP, said current account had been though opened in the name of M/s K. B. Distributors showing the name of proprietor as Gautam Chand Jajoria but fact remains that such account was benami account of R. K. Sharma (A-2) which was introduced by his co-accused Kulbhushan Sharma. Sh. Rao has contended that during investigation, Sh. Jajoria had claimed that he had opened said account with the assistance of accused R. K. Sharma. He, however, revealed that he never made any transaction in the said account and when he was shown three cheques drawn on said account, he claimed that these cheques were not bearing his signatures and these had been forged by someone. He also denied to have any knowledge about any transaction in the said current account.
8.41 I have seen account opening form Ex. PW 18/A (D-156). As per said account opening form, account was opened by M/s K. B. Distributors. Though, the introducer is shown to be one Kulbhushan Sharma, alleged to be A-2, yet fact remains that only name has been mentioned as 'Kulbhushan Sharma' and there are no signature of such introducer on Ex. PW 18/A. 8.42 Specimen signature card has been proved as Ex. PW 19/B (D-155) which also contains photograph and signatures of Sh. Gautam Chand Jajoria at point Q-95 to Q-98. Such account was allocated number as CA No. 1766. Account opening form also bears signature of Sh. Gautam Chand Jajoria at point Q-100 and Q-101. It is submitted by defence that the said account was opened by said Gautam Chand Jajoria. His specimen handwriting was also taken during investigation vide specimen sheet S-161 to S-173. As per report of Handwriting Expert, these signatures were, in fact, found to be of Sh. Gautam Chand Jajoria. Unfortunately, during trial, presence of Sh. Jajoria could not be secured due to his death.
8.43 Cheques, which allegedly had been drawn on said Current Account No. 1766 of M/s K. B. Distributors, are as under:-
(i) Favouring self of Rs. one Lac dated 18.10.1995 bearing purported signature CC No. 532161/16 CBI Vs. S.K. Arora & Ors. Page No. 37 of 72 of Sh. Gautam Chand Jajoria (Q-105) (Ex. PW 18/D).
(ii) Favouring self of Rs. Two Lacs dated 16.9.1995 bearing purported signature of Sh. Gautam Chand Jajoria (Q-108) (Ex. PW 18/C).
(ii) Favouring self of Rs. 50,000/- dated 3.11.1995 bearing purported signature of Sh. Gautam Chand Jajoria (Q-111) (Ex. PW 18/E).
8.44 These cheques are important as it is to be found out as to who were the recipients of the amount of such bearer/self cheques. Sh. Rao has stated that as per the specific report of Handwriting Expert, it becomes evident that all the said signatures appearing at Q-105, Q-108 and Q-111 were, in fact, of accused R. K. Sharma. According to Sh. Rao, if he was not behind the conspiracy or co- conspirator with Sh. S. K. Arora then there was no requirement of his signing as Gautam Chand Jajoria. Moreover, A-2 also received the cash amount from the bank, as he had also signed on reverse of all three cheques as recipient of said amount and all these signatures are at point Q-106, Q-109 and Q-112. These signatures also matched with the specimen signatures of accused R. K. Sharma.
8.45 Sh. Rao has also contended that it was accused R.K. Sharma only who had used the said account. In this regard, he has placed reliance on the cheque book issue register Ex. PW 18/G (D-135/2) which contains initial of accused R. K. Sharma at point X and Y on internal printed pages 25 & 26. These entries have been proved as Ex. PW 4/3 and Ex. PW 4/4. PW-4 Azad Singh has also deposed that such cheque books were received by accused R. K. Sharma (A-2).
8.46 According to persistent stand of Sh. Yadav, A-2 has no connection with the aforesaid account. He has stated that even as per statement of Sh. Jajoria made during the investigation accused R. K. Sharma had taken loan of Rs. 2,50,000/- from him in the year 1989-90 which he returned back along with interest after 2-3 years. It has been argued from the side of defence that there were simple business transactions between A-2 and Jajoria and the prosecution CC No. 532161/16 CBI Vs. S.K. Arora & Ors. Page No. 38 of 72 has unnecessarily assumed that there was a benami account which used to be actually operated upon by accused R. K. Sharma. According to Sh. Yadav if at all, if intention of accused R. K. Sharma was not bonafide, he would not have signed as R. K. Sharma on the reverse and would have rather signed as G.C. Jajoria.
8.47 I have seen the vouchers. Debit/credit vouchers pertaining to entry of Rs. 50,000/- are Ex. PW 20/X-26 (D-20), and Ex. PW 20/X-27 (D-27). Vouchers for entry of Rs. 3 lacs are Ex. PW 20/X-28 (D-23) and Ex. PW 20/X-29 (D-22). According to Sh. Yadav no account number as such has been mentioned and it is not clear whether debit was from the account of H.K. Suri or M. K. Suri. Moreover, there is no authorization from any one for such transfer and it is evident that Sh. S. K. Arora himself had manipulated all these documents. It has also been contended by Sh. Yadav if the contents of FIR are to be believed, even Gautam Chand Jajoria had been found at fault and the bank had requested that appropriate action be taken against Gautam Chand as well but for the reasons best known to CBI, Gautam Chand Jajoria was exonerated and was not made an accused.
8.48 Sh. Rao has contended about one more interesting aspect of the case. It is obvious from the account opening form that it was only a current account and there is nothing to show that any overdraft facility had been provided to the account holder. Account was opened with mere deposit of Rs. 1,000/- but within one week, self cheque of Rs. 2 lacs was approved by accused S. K. Arora. PW-26 Sh. Rajiv Kumar has deposed that when such cheque was presented before the concerned clerk by R. K. Sharma, there was not sufficient balance but S. K. Arora signed the same at point 'B' (Ex. PW 18/C) and allowed overdraft facility. OBC Branch in question was, in fact, in a serious mess as without there being any overdraft facility, such facility had been extended.
8.49 The unfortunate death of Gautam Chand Jajoria does not cause any adverse impact over the case in view of clinching evidence of Handwriting expert.
CC No. 532161/16 CBI Vs. S.K. Arora & Ors. Page No. 39 of 72 It is quite apparent that accused R.K.Sharma was pulling the strings and had received the cheque books and also signed as Gautam on the cheques. He also received the cash under said cheques and, thus, it is quite clear that CA 1766 was actually a benami account of A-2. He thus also has a direct nexus with DL account no. 46.
9. Debit Entry dated 15.11.95 of Rs. 12,00,000/-
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10. Debit entry dated 14.12.95 of Rs. 20,000/-
8.50 There are no vouchers available for said two entries and nobody knows as to where actually the amount allegedly withdrawn under said two entries went to. It cannot be inferred that said amount was pocketed by the co-accused of A-1 without their being any corroboration of any nature whatsoever.
8.51 As far as entry related to withdrawal of a sum of Rs. 12 lacs on 15.11.195 is concerned, in the purpose column, the words "s/o Mehra" are found mentioned and prosecution, during trial, has not been able to throw sufficient light about this mysterious person. As regards the other entry dated 14.12.1995 also, it seems that some advance amount of Rs. 20,000/- was provided to the borrower. Be that as it may, these entries have been made without any supporting documents and, therefore, the onus though lies on the branch manager but it cannot be automatically inferred that said amount had reached any of the co- accused of A-1.
8.52 I would, however, hasten to supplement that during the investigation, CBI looked quite certain that such amount of Rs. 12 lacs had actually been provided to one Sh. Ashok Mehra as he was specifically quizzed about the said fact during investigation stage itself. PW56 Sh. Ashok Mehra s/o Sh. Mohinder Chand entered into witness box and deposed that he had never received any sum of Rs. 12 lacs from H. K. Suri or for that matter from S. K. Arora. In his deposition, CC No. 532161/16 CBI Vs. S.K. Arora & Ors. Page No. 40 of 72 he also admitted that he had met Mr. Suri one or two occasions in the bank which shows that there might be some connection between H.K. Suri and Sh. Ashok Mehra but there is nothing which may indicate that said amount of Rs. 12 lacs ever reached accused R. K. Sharma or for that matter his brother Kamal Naresh Sharma.
8.53 I would also like to highlight here that when Ashok Mehra was examined during the investigation, he claimed that he knew R. K. Sharma but fact remains that in his deposition before the court he did not say anything of such kind and even prosecution did not think of questioning him on said deviation. He also claimed in his cross-examination that his one FDR was lying in OBC Basant Lok and he had also given money to S. K. Arora for investing in the bank scheme, part of which was returned in cash. He also claimed that his FDR was never handed over to him by Sh. S. K. Arora.
8.54 There is a remote possibility that even he might have been cheated at the hands of S. K. Arora.
8.55 Be that as it may, CBI has not been able to elucidate much about said two entries.
12. Debit entry dated 18.12.95 of Rs. 12,50,972/-
8.56 As per ledger Ex. PW 16/DF, a sum of Rs. 12,50,972/- was taken out from said loan account on 18.12.1995.
8.57 In this regard, reference be made to D-24.
8.58 As per said voucher, said amount was debited from the loan account on 18.12.1995. Such voucher has been proved as Ex. PW 16/DL. According to Ld. Sr. PP the said amount was utilized in the following manner:
CC No. 532161/16 CBI Vs. S.K. Arora & Ors. Page No. 41 of 72 Sl. No. Amount Transferred to/Utilized for
1. Rs. 4,32,000/- Loan Account No.69 of A-2 R. K. Sharma for adjustment/settlement of the said loan account on 18.12.1995 itself.
2. Rs. 1,33,842/- Issuances of 5 pay orders favoring Indian Oil Corporation Rs. 82,829/- ltd. (IOCL) on behalf of Mool Chand Motors.
Rs. 200767/-
Rs. 200767/-
Rs. 200767/-
8.59 Let me see these transactions one by one.
8.60 As regards said amount of Rs. 4,32,000/-, there is a transfer application Ex PW 20/X-35 (D-29), whereby said amount of Rs. 4,32,000/- was requested to be credited in the Demand Loan Account No. 69 of R. K. Sharma. Such application was processed and signed by S. K. Arora and on the basis of same, TPO Ex. PW 20/36 (D-30) was prepared on 18.12.1995 itself. TPO is Ex. PW 8/5 (D-82).
8.61 According to Sh. Yadav, Ld. defence counsel, accused R. K. Sharma (A-2) had no connection with Demand Loan Account No. 69 and except for the ledger sheet, there is no corresponding document to show or substantiate that said Demand Loan No. 69 belonged to A-2. However, Ld. Sr. PP has resisted the same by claiming that said Demand Loan Account was opened on 24.12.1992 against security and the address of R. K. Sharma has been mentioned as C/o Mool Chand Motors, Basant Lok, New Delhi. On the date of opening itself i.e. 24.12.1992, entire amount of loan of Rs. 3,50,000/- was advanced to Sh. R. K. Sharma. Sh. Rao has also pointed out that LD-4 and LD-5 of said loan account are also on record. He has drawn my attention to LD-4 (Ex. PW 49/38) (D-321) and LD-5 (Ex. PW 49/31) (D-322). These bear signatures of R. K. Sharma at point X and X-1 and it is clear that as per said documents, R. K. Sharma of Mool Chand Motors had requested opening of loan account to OBC Mahipal Pur Branch on 24.12.1992. So much so, the disbursement of Rs. 3,50,000/- on 24.12.1992 has also been duly proved as Ex. PW 22/A-7(D-79) which too bears CC No. 532161/16 CBI Vs. S.K. Arora & Ors. Page No. 42 of 72 signature of R. K. Sharma at point Q-128. Its original is Ex. PW 20/R-1 (D-319) which also bears signature of R. K. Sharma on reverse. Undoubtedly, in the carbon copy, loan account number has been mentioned as 79/6 which has been 'over written' as 69 but fact remains that in the original transfer voucher, Demand Loan Account No. 69 is found clearly mentioned on the left top side. Sh. Yadav, Ld. defence counsel has contended that voucher (D-24) cannot be connected with the Demand Loan account as it rather shows the account holder as N. K. Suri and also because no Demand Loan Account number has been mentioned as such on the transfer voucher. Nonetheless, the entry in ledger Ex. PW 16/DX stands amply connected with the TPO and it is quite clear that a sum of Rs. 4,32,000/- (part of Rs. 12,50,972) landed in Demand Loan Account No. 69. Ledger Ex. PW 22/A-8 clearly indicates that vide TPO a sum of Rs. 4,32,000/- was deposited in the said loan account on 18.12.1995 which clearly suggests R. K. Sharma to be the ultimate beneficiary of the said amount of Rs. 4,32,000/-.
8.62 Sh. Rao has also drawn attention of the court towards the testimony of PW-22 Updesh Sharma and PW-41 Neelam Ohri. I have seen their testimony which too suggests that the Demand Loan Account of Rs. 3,50,000/- was allowed in the name of R. K. Sharma and same was given number as Account No. 69. PW 22 Updesh Sharma has also clarified that said Demand Loan was allowed by Ms. Neelam Ohri against CDR 2687/92/723 and CDR 2690/92/7441 for Rs. 4,50,000/- issued by OBC Mahipalpur Branch, New Delhi. He also identified the signatures of Mrs. Neelam Ohri on the ledger sheet. Mrs. Neelam Ohri has also deposed on said lines. There is nothing in the cross-examination to the contrary. In such backdrop, defence cannot be permitted to take any advantage of the word "Munirka appearing in ledger sheet. Such word "Munirka" only indicates, in the light of aforesaid testimony, that CDR issued by Munirka branch was kept as security and not that any account had been opened with Munirka Branch.
8.63 Thus, R. K. Sharma cannot be permitted to deny his connection with such loan account D/L No. 69.
CC No. 532161/16 CBI Vs. S.K. Arora & Ors. Page No. 43 of 72 8.64 According to Ld. defence counsel, A-2 was in automobile business under the name & style of Mool Chand Motors and he had, in fact, got prepared pay orders in the name of Indian Oil Corporation Ltd. on behalf of Mool Chand Motors. According to him, amount was given in cash by accused R. K. Sharma to the bank and against such cash amount, the bank had prepared five pay orders. Such assertion has been out rightly disowned by CBI. According to CBI, A-2 had never made any cash payment and rather the amount was withdrawn from said Demand Loan account No. 46 and thereafter the same had been used for preparation of said pay orders.
8.65 I have seen voucher Ex. PW 16/DL (D-24). It contains details of 5 pay orders on the reverse which are stated to be in the handwriting of accused S.K. Arora. Reference be also made to the testimony of PW-53 Sh. Vinay Sagar Gupta. He has categorically claimed in his deposition dated 8.1.2013 that the amount mentioned on the back side of D-24 appears to have been utilized for preparation of cash orders by way of credit vouchers which are Ex. PW 20/X-30 (D-25), PW 20/X-31(D-26), PW 20/X-32 (D-27), PW-20/X-33(D-31), PW 20/X- 34(D-32) and Ex. PW 20/X-35(D-29 ). His deposition reflects that out of said total amount, while said pay orders had been prepared in favour of Indian Oil Corporation Ltd., the rest of the amount was credited to Demand Loan account no. 69 which was loan account of A-2 which he was maintaining with Mahipalpur Branch. I have seen Ex. PW 20/X-35 (D-29) also in this regard and Ex. PW 20/X- 36 (D-30). It becomes clear that the beneficiary was no one else except A-2.
13. Debit entry dated18.12.95 of R.s. 60,661/-
8.66 As regards the aforesaid entry of Rs. 60,631/-, according to CBI the amount was transferred to the loan account of Kamal Naresh Sharma. Vouchers are Ex. PW 20/X-37 (D-28) and Ex. PW 20/X-38 (D-33).
CC No. 532161/16 CBI Vs. S.K. Arora & Ors. Page No. 44 of 72 8.67 However, it needs to be fully assured whether any such said Demand Loan account belonged to accused Kamal Naresh Sharma or not.
8.68 Reference be made to ledger sheet Ex. PW 26/1 (D-229). It shows and depicts the name of account holder/borrower as Kamal Naresh Sharma c/o Mool Chand Motors. There is no further document which may suggest that such loan account was in the name of accused Kamal Naresh Sharma facing trial at the moment. No other particulars including parentage/address etc. have been mentioned in the ledger sheet. No description of any security document is found to be given. No LD-4 and LD-5 are found to be there. Moreover, there are no signatures of 'Kamal Naresh Sharma' anywhere which may link him with the aforesaid loan account and, therefore, such entry does not stand connected with any of the private accused persons including A-3. I would also, right here, add that in a serious criminal trial like the present one, there is no room for surmises and conjectures.
14. Debit entry dated 18.12.95 of Rs. 25,00,000/-
8.69 It happens to be huge entry of Rs. 25 Lacs.
8.70 According to CBI, out of the aforesaid sum of Rs. 25 Lacs, a sum of Rs. 14,73,340/- was transferred to Demand Loan account no. 137 which belonged to A-2 and the balance amount of Rs. 10,26,660/- was transferred to Demand Loan account No. 38 of A-3.
8.71 As regards Demand Loan account no. 137, reference be made to ledger sheet Ex. PW4/2 (D-131) which shows that such Demand Loan account no. 137 was opened in the name of Rajinder Kumar Sharma on 14.12.1994. Address of borrower has been shown as 951/17, Gurgaon and loan was against one CDR of Rs. 16.90 Lacs. LD-4 with respect to said account has been proved as Ex. PW 20/X-58 (D-124) which bears signature of A-2 at Q-80, Q-81 and Q-82 CC No. 532161/16 CBI Vs. S.K. Arora & Ors. Page No. 45 of 72 and LD-5 as Ex. PW 20/X-59 (D-125) which bears signature of A-2 R.K. Sharma at Q-83 and Q-84.
8.72 Ld. defence counsel has baldly denied these LD-4 and LD-5 and has claimed that no such account was ever opened by A-2 R. K. Sharma. However, his contention does not seem to be believable. Even as per report given by Handwriting Expert, such signatures Q-80, Q-81, Q-82, Q-83 and Q-84 matched with the signature of A-2. Ledger sheet Ex. PW 20/X-66 (D-131) further indicates that said loan account no. 137 had in fact, received a sum of Rs. 14,73, 340/- from the account of H. K. Suri on 18.12.1995.
8.73 It will also be important to mention that immediately after disbursement of such loan amount of Rs. 13 Lacs in favour of accused R. K. Sharma, a sum of Rs. 13 Lacs was transferred in the account of one R. K. Aggarwal vide pay order Ex. PW 20/X-67 (D-133). Such Rajiv Kumar Aggarwal was having a current account No. 955 with Oriental Bank of Commerce and the relevant documents in this regard have been proved. There are account opening form Ex. PW 22/A-10 (D-316) and statement of account Ex. PW 21/G (D-318). There is apparent connection between the two accounts as introducer of the said account of Rajiv Kumar Aggarwal is found to be none other than A-2 R. K. Sharma. Quite possibly, even it might be a benami account of A-2.
8.74 As regards sum of Rs. 10,26,660/-, reference be made to ledger sheet Ex. PW 24/2 (D-221). As per number mentioned on the right top corner, this ledger pertains to Loan account No. DL-38. It was in the name of Kamal Naresh Sharma (A-3) and it is clear that from the account of H.K. Suri, a sum of Rs. 10,26,660/- was credited in the said Demand Loan account no. 38 on 18.12.1995. Defence has out rightly disowned such Demand Loan account as well. Its contention remains the same that there is no other document of any nature whatsoever which may show that Kamal Naresh Sharma had opened any such loan account no. 38. Undoubtedly there has to be some document in the CC No. 532161/16 CBI Vs. S.K. Arora & Ors. Page No. 46 of 72 shape of LD-4 and LD-5 which unfortunately are not there. As per such ledger sheet DL No. 38 was opened with sanctioned limit of Rs. 20 Lacs but there is not enough of clarity as to who can be said to be the holder of said account in absence of any concrete documentary proof.
8.75 Thus, the said entry stands proved in part to the extent of Rs. 14,73,340/-.
15. Credit entry dated 18.12.95 of Rs. 507397/-
8.76 CBI has strongly relied upon testimony of PW-34 Gautam Suri in connection with said entry.
8.77 According to said entry, a sum of Rs. 5,07,397/- was transferred from the proceeds of FDR of Gautam Suri. Such FDR has been proved as Ex. PW 16/DC (D-37) and its voucher as Ex. PW 16/DM (D-38) and Ex. PW 16/DD (D-39).
8.78 It is apparent that one FDR of sum of Rs. 5 Lacs was with Oriental Bank of Commercial, Basant Lok branch. It is of 18.10.1995 and was opened for 60 days vide folio No. 4260. It is indeed not clear as to how the proceeds of said FDR were transferred to loan account no. 46.
8.79 PW-34 Gautam Suri has, interestingly, disowned such FDR. He claimed that he had no knowledge of any such FDR. He even denied his handwriting and signatures on the voucher. He claimed that he never went to Basant Lok branch for preparation of FDR and that neither any amount was deposited by him with the bank in this regard.
8.80 Be that as it may, fact remains that there is a clear cut credit entry, source of which becomes little mysterious in view of evidence of Gautam Suri. It cannot be said with any certainty that said amount had come from the account of CC No. 532161/16 CBI Vs. S.K. Arora & Ors. Page No. 47 of 72 any of the private accused, directly or indirectly. However, the concerned branch had no reason to encash someone's FDR without any authorization.
16. Debit entry dated 22.12.95 of Rs. 1,50,000/-
8.81 This particular entry pertains to A-5.
8.82 As per CBI, a sum of Rs. 1.5 lacs was debited from the said Demand Loan account No. 46 of H.K. Suri and such amount was credited to the current account No. 783 of K. B. Enterprises which shows involvement of accused Kulbhushan Sharma (A-5).
8.83 Defence Counsel Sh. Sanjiv Gupta, has very fairly admitted that current account No. 783 was opened by M/s K. B. Enterprises and Kulbhushan Sharma (A-5) is its proprietor. He has, however, claimed that he was to get a sum of Rs. 1.5 lacs from accused R. K. Sharma and he was all along under the impression that the entry is in such relation only. He has argued that there was no question of his rather asking from R. K. Sharma about the source through which said repayment had been made. He has also claimed that later on such amount was unnecessarily withdrawn by the bank and put to sundry account on 19.3.1997 and when he challenged, the amount was re-credited in his account on 17.4.1997.
8.84 I have seen account opening form Ex. PW 4/1 (D-298) and account opening form Ex. PW 21/D (D-297). Signatures appearing on specimen card at portions Q-124, Q-125, Q-126 and Q-127, which admittedly are of A-5, did not match with the signatures appearing on the reverse of relevant voucher Ex. PW 16/DK-1 (D-41) and Ex. PW 16/DK-2 (D-40). Thus, though version of A-5 seems believable and somewhat indicts A-2 as well, fact remains that it cannot be said that such amount was credited in the account of A-5 under any conspiracy involving A-5. A-2 has also failed to discharge his onus in the desired manner.
CC No. 532161/16 CBI Vs. S.K. Arora & Ors. Page No. 48 of 72
17. Debit entry dated 22.12.95 of Rs. 50,000/-
8.85 A sum of Rs. 50,000/- was transferred to Saving Bank Account No. 8288 of Kalyan Singh.
8.86 Kalyan Singh is not an outsider. He is rather a bank official of Oriental Bank of Commerce only. In his deposition, PW-7 Kalyan Singh claimed that he knew accused R. K. Sharma who approached him for some friendly loan in personal capacity and since he knew him for the last 10 years, he gave him such loan and towards repayment of such loan, accused R. K. Sharma had given a cheque of Rs. 50,000/- which bounced. Later on, accused R. K. Sharma informed him that the money had been duly credited in his account. Such deposition of Kalyan Singh shows a direct interconnection between said loan account no. 46 and A-2 R. K. Sharma.
8.87 Undoubtedly, there is no other documentary proof to show that any loan had been given by Kalyan Singh to accused R. K. Sharma but fact remains that Kalyan Singh had received a sum of Rs.50,000/- and such sum was transferred to his savings bank account from said loan account no. 46 and the voucher was also passed by accused S. K. Arora. Though the role of Kalyan Singh should have been scrutinized minutely and he should have also informed his employer about such personal loan transaction, yet fact remains that his testimony lays bare the ostensible connection between Demand Loan account no. 46 and A-2.
18. Debit entry dated 30.12.95 of Rs. 6,70,000/-
&
20. Debit entry dated 8.1.96 of Rs. 10,00,000/-
8.88 Both these entries have been attributed to A-5 Kulbhushan Sharma, being beneficiary. I have seen the related cash vouchers which have been proved CC No. 532161/16 CBI Vs. S.K. Arora & Ors. Page No. 49 of 72 as Ex. PW 20/X-16 (D-6) and Ex. PW 20/X-17 (D-7). As regards the first entry, it has been mentioned that the entry was against one FDR and there are signatures of the recipient at point Q-3 on the reverse.
8.89 I have seen voucher Ex. PW 20/X-17 (D-7). Vide this voucher, a sum of Rs. 10 Lacs had been credited in the account of one K.K. Bhushan on 8.1.1996. It also bears signature of one person on the reverse which has been marked as Q-4. It is quite evident that during investigation CBI though thought that such amount had been pocketed by A-5 Kulbhushan Sharma but fact remains that signatures at points Q-3 and Q-4 did not match with the signature of A-5.
8.90 Sh. Gupta has also contended that even otherwise when suit for recovery was filed before DRT with respect to the said entries, no necessity was felt to make Kulbhushan Sharma as respondent which clearly indicates that even as per the bank, accused Kulbhushan Sharma was not beneficiary of such alleged amount.
8.91 There is no other material which may show or suggest that such amount of Rs. 6.70 Lacs and Rs. 10 Lacs had gone to the pocket of A-5 or any other private accused and, therefore, such entries do not stand proved in the desired manner. These vouchers were prepared & processed by A-1 and in absence of any other corresponding material, A-5 cannot be said to be beneficiary of said amount.
19. Debit entry dated 30.12.95 of Rs. 2,50,000/-
8.92 According to CBI, a sum of Rs. 2,50,000/- was received by accused R. K. Sharma on 30.12.1995 from said account which clearly corroborates the version of CBI that such Demand Loan account no. 46 was actually of A-2 R. K. Sharma only.
CC No. 532161/16 CBI Vs. S.K. Arora & Ors. Page No. 50 of 72 8.93 Voucher in this regard has been proved as Ex. PW 20/X-15 (D-5) which bears signature of R. K. Sharma on reverse at point Q-2 in token of receiving the cash. A-2 has baldly denied and disowned his signatures but the testimony of Handwriting Expert nails him down. Defence is not justified in claiming that the opinion is a manufactured or procured one.
21. Debit entry dated 5.2.96 of Rs. 4,63,000/-
8.94 According to CBI, a sum of Rs. 4,63,000/- was paid in cash to Devender Bansal on 5.2.1996 and said Demand Loan No. 46 was debited of the corresponding amount.
8.95 Reference in this regard be made to the testimony of PW-37 D. K. Bansal.
8.96 He has categorically deposed that he knew A-2 R. K. Sharma who had a petrol pump in Basant Lok. As per PW-37 D. K. Bansal, he himself was running Chit Fund Company known as Dicky Chits Pvt. Ltd. According to him A-2 was in need of Rs. 4 to Rs. 5 Lacs. He gave such amount in cash to Mr. R. K. Sharma who started making repayment in installments and towards the balance amount, R. K. Sharma asked him to go to Oriental Bank of Commerce Basant Lok and to meet Mr. Arora assuring that he would pay him the balance amount. R. K. Sharma also told that he had already talked to Mr. Arora in this regard. During the time of deposition, A-1 was alive. PW-37 Mr. Bansal also identified Mr. Arora, (A-1) as well as A-2 R. K. Sharma. He deposed that Sh. S. K. Arora asked him to fill up withdrawal slip and to sign on the back side of the said slip. He has proved such slip as Ex. PW 20/X-18 (D-8). It is the same voucher against which a sum of Rs. 4,63,000/- was debited from Demand Loan account no. 46 of H. K. Suri and was eventually paid by cash to Sh. Devender Bansal. His signatures at point Q-5 on reverse also matched with his specimen signature contained in S-199 to S-
207. CC No. 532161/16 CBI Vs. S.K. Arora & Ors. Page No. 51 of 72 8.97 Ld. defence counsel has claimed that there is no document to show that there was any Chit Fund and the testimony of Bansal is procured one and not believable at all. It has also been claimed that why he would receive a sum of Rs. 4,63,000/- when Chit was allegedly of Rs. 2 Lacs and when he had already received part payment.
8.98 However, I do not have any reason to disbelieve the testimony of D. K. Bansal. Moreover, he is independent witness and it is not explained by defence as to why would such independent witness depose against the accused with whom he has no animosity.
22. Credit entry dated 7.2.96 of Rs. 40,500/-
23. Credit entry dated 19.2.96 of Rs. 1,00,000/-
24. Credit entry dated 11.7.96 of Rs. 8,00,000/-
25. Credit entry dated 11.7.96 of Rs. 8,00,000/-
26. Credit entry dated 11.7.96 of Rs. 8,00,000/-
27. Credit entry dated 13.7.96 of Rs. 7,00,000/-
8.99 All these entries are cash deposit entries and it is not clear as to who deposited the amount in such Demand Loan account no. 46.
28. Credit entry dated 20.7.96 of Rs. 9,79,500/-
29. Credit entry dated 3.8.96 of Rs. 4,90,000/-
8.100 There is one saving bank account no. 12508 at Mahipalpur Branch.
8.101 It had been opened pursuant to account opening form Mark P-41/1 (D-301). It is a joint account of S. K. Sharma, Kamal Sharma (A-3 herein) and Moorti Devi. A sum of Rs. 9,80,000/- was deposited in the said account by clearing on 15.7.1996 and thereafter a sum of Rs. 9,79,500/- was transferred vide CC No. 532161/16 CBI Vs. S.K. Arora & Ors. Page No. 52 of 72 TPO on 18.6.1996 and another sum of Rs. 4,90,000/- vide TPO on 27.7.1996. Statement of account has been proved as Mark P-41/2 (D-304). These amount landed in said Loan Account no. 46.
8.102 Entries are not of small amount.
8.103 Therefore, onus now shifts on to accused Kamal Naresh Sharma (A-3), who is joint account holder, to explain as to why such large amount of approximately Rs. 15 Lacs (covered under said two entries) had been transferred from their Saving Bank account no. 12508 to said Demand Loan account no. 46 if there was no interconnection between them. Non-explanation speaks volumes about the underlying connection between these accounts.
ACCOUNTS ALLEGEDLY RELATED TO ACCUSED K.N. SHARMA (A-3) Sr. Name of Account Number Branch Name Exhibit and D Number No. Account Holder 1 Shree CA 1413 Basant Lok Ex PW9/A ( D 237) Associates Ex PW9/ B ( D 235) Ex PW21/A ( D 252) 2 Shree CA 1523 Basant Lok Ex PW21/B ( D 261) Associates Ex PW9/ D ( D 236) Ex PW21/C( D 255) 3 Shree CA 1571 Mahipal Pur Mark P 53/AX1 D- 295 Associates 4 Kamal Narain CA1624 Basant Lok Ex PW 20/W ( D 210) Sharma Ex PW49/ 32 ( D 209) Ex PW24/DB ( D 218) 5 Kamal Narain DL 1024 Mahipal Pur Ex PW20/X7 ( D 227) Sharma 6 ------- DL 38 --------
7 Kamal Prakash DL 136 Ex PW 20/S5 (D 154) ( K.P. Sharma/ K.N.Sharma) 9.0 Now let me see the documents related to the said various accounts. However, before adverting to the relevant documents, let me first recapitulate the CC No. 532161/16 CBI Vs. S.K. Arora & Ors. Page No. 53 of 72 stance taken by both the sides.
9.1 As per CBI, M/s Shree Associates was used as a fictitious entity and it was attempted to be projected as if one Sh. Rajinder Shreedhar (PW-19) was either its proprietor or partner, whereas in fact, such concern was owned and controlled by A-3 Kamal Naresh Sharma as well as his brother A-2 R. K. Sharma.
9.2 Sh. Yadav, Ld. defence counsel for A-2 and A-3 have, on the other hand, stated that Rajinder Shreedhar was its sole proprietor and he had himself withdrawn the amount from the accounts in question by signing either as proprietor or partner and CBI has unnecessarily fastened the liability upon A-2 and A-3. He has reiterated that neither A-2 nor A-3 had any concern with the said accounts opened in the name of M/s Shree Associates.
9.3 Let me now assess the same.
9.4 Current Account No. 1413 was opened on 27.8.1993. As per account opening form Ex. PW 19/A (D-237), it was opened by Shreedhar. His signatures are there at point Q-7 and Q-8 on account opening form. Said account was introduced by A-2 R. K. Sharma and his signatures are at point Q-10. Specimen signature card has been proved as Ex. PW 19/B on which signature of Shreedhar are there at point Q-114 and Q-115.
9.5 Said Rajinder Shreedhar (PW-19) has also entered into witness box. He has deposed that in the year 1993, he was working in petrol pump of Mool Chand Motors, Basant Vihar, New Delhi and R. K. Sharma (A-2) was owner of said petrol pump. His duties were to prepare bills and to deal with the bank. He did admit that said account was opened in the name of M/s Shree Associates on 27.8.1993. He also admitted his signature on the account opening form and specimen signature card. However, in the next breath, he (PW-19) also divulged that said account was actually opened by Sh. R. K. Sharma and he was merely CC No. 532161/16 CBI Vs. S.K. Arora & Ors. Page No. 54 of 72 instructed by him to put signature on account opening form and specimen card. So much so, he claimed that when he signed these documents, some documents were blank and Ex. PW 19/A was rather filled up later by Sh. R. K. Sharma himself. Such fact also gets corroboration from the evidence of Handwriting Expert. According to Handwriting Expert report of Sh. R.Chandra, the handwriting appearing at portion Q-6 and Q-9 on account opening form is found to be in the hand of accused R. K. Sharma. Thus it becomes clear that it was accused R. K. Sharma who was pulling strings from behind and he had exercised his undue influence over his employee Sh. Rajinder Shreedhar.
9.6 According to Sh. Yadav, there is no document which may indicate that Sh. Rajinder Shreedhar was his employee or that he has been coerced as even otherwise, no complaint in this regard was ever lodged by Shreedhar anywhere. Undoubtedly, there is no complaint but then fact remains that on some such occasions either under the pressure of employer or in order to ensure that job is not lost, helpless employees, albeit unwillingly, succumb to such pressure of their employer. I do not find any reason to disbelieve Rajinder Shreedhar particularly when he has no animosity of any kind with Sh. R. K. Sharma and his brother K. N. Sharma.
9.7 It is quite obvious that PW-19 Rajinder Shreedhar was forced to open another account in which he was shown as partner of M/s Shree Associates. Such account is CA No. 1523 and it was opened on 9.9.1994 showing Shreedhar and K. N. Sharma as its partners. Such account was also introduced by accused R. K. Sharma. Account opening form has been proved as Ex. PW 21/B (D-261) which bears signature of both the alleged partners as well as of introducer R. K. Sharma. Its specimen card has been proved as Ex. PW 19/D (D-236).
9.8 I have also seen the statements of account of both the aforesaid accounts as well as various cheques drawn on said account whereby amount was withdrawn 'in cash' by issuing 'self cheques'. There is evidently a direct connection CC No. 532161/16 CBI Vs. S.K. Arora & Ors. Page No. 55 of 72 of accused R. K. Sharma and K. N. Sharma with said two accounts. Reference be made to cheques Ex. PW 19/C-1 to Ex. PW 19/C-14 (D-238 to D-251). First cheque Ex. PW 19/C-1 is for a sum of Rs. 8 lacs. It is a self cheque and words "for Shree Associates" mentioned in front of the cheque at point Q-12 are found to be in the handwriting of none other than A-2 R. K. Sharma. Similarly the cash amount of Rs. 2 lacs (under cheque Ex. PW 19/C-5), Rs. 50,000/- (under cheque Ex. PW 19/C-9) and cash amount of Rs. One lac (under cheque Ex. PW 19/C-11) were withdrawn by accused R. K. Sharma by signing at point Q-23, Q-30 and Q- 33 respectively. As per report Ex. PW 15/A of R. Chandra, these signatures are, again, found to be of accused R. K. Sharma. Thus, it is quite evident that Rajinder Shreedhar was only a puppet in the hands of R. K. Sharma and K. N. Sharma and was not the beneficiary in any manner whatsoever. There are number of transactions in the said two accounts.
9.9 Overdraft of Rs. 32 lacs was sanctioned on 25.2.1994 in Current Account No. 1413.I have seen the statement of account Ex. PW 21/A (D-252) which shows that there was outstanding of Rs. 42.20 lacs in Current Account No. 1413 and such outstanding was negated by obtaining an equivalent amount from Current Account No. 1523 on 10.4.1994.I have also seen the statement of account of CA No. 1523 which has been proved as Ex. PW 21/C (D-255) which also shows that on 10.4.1994 a sum of Rs. 42.20 lacs was transferred from Current Account No. 1523.
9.10 It is not understandable as to how and why overdraft to the tune of Rs. 42.20 lacs was accorded to said account of M/s Shree Associates. This must be, naturally, with the active connivance of S. K. Arora (A-1). It was not possible otherwise. Interestingly, the said statement of account Ex. PW 21/C also shows a credit entry of Rs. 22 lacs but there is no corresponding voucher and it is not at all clear as to where from such huge amount of Rs. 22 lacs was transferred to the account of Shree Associates of which K. N. Sharma was also one of the partner. There is no explanation from accused K. N. Sharma except the bald denial that he CC No. 532161/16 CBI Vs. S.K. Arora & Ors. Page No. 56 of 72 had no concern with said firm. The outstanding rose to more than Rs. 28 lacs in such Current Account No. 1523 on 20.4.1996 which wad adjusted by crediting one TPO dated 20.4.1996 issued by Mahipalpur Branch from Account No. 1571.
9.11 This third account, i.e.1571 is also in the name of M/s Shree Associates. Account opening form and specimen signature card of said account were not found available in the bank record but its 'statement of account' has been placed on record. Same is marked P-53/AX-1 (D-295). Such statement shows the name of account holder as M/s Shree Associates. Undoubtedly, the document has not been exhibited in the desired manner and moreover certificate/stamp appearing on such ledger sheet does not bear signature of any one from the bank but there is no denial of the fact that there was clear cut interconnection amongst all such three such accounts and these accounts were managed by none other than accused R. K. Sharma as well as his brother K.N. Sharma.
9.12 In connection with Current Account No. 1571, reference is also required to be made to following documents:
a) LD-5 dated 1.5.1996 Ex. PW 4/6 (D-283), b) LD-4 dated 1.5.1996 Ex. PW 17/A (D-282), c) Agreement for overdraft Ex. PW 4/7 (D-284). 9.13 All these three documents would, otherwise, show that the borrower,
i.e. M/s Shree Associates wanted financial assistance by way of overdraft for a sum of Rs. 38.60 lacs and request was accordingly lodged with Mahipalpur Branch on 1.5.1996. However, at the same time, fact remains that none of the said three documents are found to be signed by any one from the side of the borrower. This reflects misconduct of Sh. S. K. Arora who gave credit facility without adhering to basic-most requirements.
CC No. 532161/16 CBI Vs. S.K. Arora & Ors. Page No. 57 of 72 9.14 CDR No. 4593 dated 29.3.1996 of Rs. 40.60 lacs has been proved as Ex. PW 20/D (D-268). Such CDR was issued in favour of M/s Shree Associates on 29.3.1996 by debiting one Saving Bank Account No. 10462 of Rajbir Kaur at OBC Basant Lok. Voucher in this regard has been proved as Ex. PW 20/E (D-269). According to Sh. Rao, such Saving Bank Account No. 10462 was actually a benami account being managed by Sh. Rajan Tandon for investment of his black money.
9.15 I have seen statement of account of Saving Banking Account No. 10462 alleged to be in the name of Ms. Rajbir Kaur. It has been proved as Ex. PW 22/E (270). Fact, however, remains that there is no corresponding account opening form or specimen card. There is nothing before the court which may show interconnection between Ms. Rajbir Kaur and Rajan Tandon. I have also seen the relevant vouchers contained in D-271 to D-273 which do not bear signature of any of the accused. However, there is apparent connection between the said Saving Bank Account purported to be in the name of Ms Rajbir Kaur and M/s Shree Associates as a sum of Rs. 40.60 lacs was credited in said Saving Bank account no. 10462 from the account of M/s Shree Associates. In such a situation, the onus shifts on A-2 and A-3 to explain connection between M/s Shree Associates and Ms. Rajbir Kaur.
9.16 I have perused the testimony of PW-45 Rajan Tondon. He knew Sh. S. K. Arora, Branch Manager of OBC Basant Lok Branch. According to him, Sh. Arora had requested him for obtaining some deposit for his branch and he accordingly deposited lacs of rupees with him. He claimed that money was handed over to Sh. Arora and he used to note down the amount but no receipt was ever issued by Sh. Arora. He also deposed that when Sh. Arora informed him that he had been transferred to Mahipalpur Branch, he also revealed that his such deposits had also been transferred to Mahipalpur Branch. He claimed that he did not know any Rajbir Kaur and never made any deposit in her name. When he was cross-examined by prosecution, he pleaded ignorance by claiming that he CC No. 532161/16 CBI Vs. S.K. Arora & Ors. Page No. 58 of 72 did not remember whether he had invested any amount of Rs. 50 lacs in benami name. Undoubtedly his statement before the court does not show the actual purpose, but, at least, reflects that Sh. Arora was using and abusing his office by accepting unaccounted money or black money with some ulterior motive to cheat and defraud the bank.
9.17 Undoubtedly, some action should have been taken against Sh. Tandon also but omission thereof would not mean that accused R. K. Sharma and K. N. Sharma can be permitted to go scot free. For all purposes, they were at the helm of affairs of all the three said accounts relating to M/s Shree Associates.
9.18 According to CBI, one Demand Loan account No. 136 was opened in the name of K. N. Sharma thereby sanctioning loan of Rs. 6,22,123/- to him. Such demand loan had been opened fraudulently and dishonestly to adjust three other benami loan accounts, i.e. Demand Loan account No. 99, 101 and 125.
9.19 In relation to Demand Loan account No. 136, prosecution has relied upon D-154 claiming that it pertains to said loan account of accused K. N. Sharma. There is some apparent confusion with respect to the name of borrower as in such ledger sheet 154/2 (which does not seem to have been proved by CBI), the name of the borrower has been mentioned as K. K. Sharma and then alphabet 'K' mentioned at second place has been struck-off and word Prakash has been added suggesting name of borrower as 'K. Prakash Sharma'. There are no other particulars of the borrower. It seems loan was against pledge of one FDR of Rs. Nine lacs but prosecution has not been able to apprise the court about other details of such FDR which can connect accused K.N. Sharma with the said ledger sheet.
9.20 Another page of such ledger sheet, which is a photocopy only, has been proved as Ex. PW 20/S-5 (154/1) but it also does not seem to serve any real purpose. It is the prime most duty of the prosecution to first establish that accused CC No. 532161/16 CBI Vs. S.K. Arora & Ors. Page No. 59 of 72 K. N. Sharma (A-3) was the person who had approached for obtaining of such loan. No LD-4 or LD-5 pertaining to such Demand Loan is found to be there on record and, therefore, it would be very difficult to assume that said Demand Loan account No. 136 was of A-3 and none else, merely on the basis of name mentioned in the ledger sheet which, too, as already observed, has unexplained overwriting.
9.21 I have also seen the documents relating to other three fictitious loan accounts. Demand Loan account No. 99 was reportedly opened on 23.6.1994 in the name of Vinod Kumar Sajjan Devi. Its ledger sheet has been proved as Ex. PW 26/3 (D-14). I have also seen another ledger sheet of Demand Loan account No. 101 which has been proved as Ex. PW 26/4 (D-145), according to which the borrower was Sneh Gupta and V. K. Gupta and the loan of Rs. 3.50 lacs was sanctioned on 15.7.1994. The third Demand Loan account DL 125 is reportedly in the name of K. K. Sharma. It was opened on 20.10.1994 with the loan amount of Rs.88,000/-. Ledger sheet has been proved as Ex. PW 26/3 (D-149).
9.22 These ledger sheets and related vouchers also do not take us anywhere. Moreover, the allegations of the prosecution are very pinpointed and specific and according to CBI, the outstanding of three fictitious accounts was adjusted through Demand Loan account No. 136 of K. N. Sharma (A-3). As already noted above, there is not enough material on record to hold that such Demand Loan account No. 136 belonged to A-3 K. N. Sharma. Undoubtedly, opening of these accounts would certainly reflect upon the manner in which accused S. K. Arora was conducting himself as he permitted opening of these Demand Loan accounts without obtaining requisite documents and without their being any LD-4 or LD-5.
9.23 Be that as it may, outstanding related to said DL No. 136 does not stand connected to any private accused.
CC No. 532161/16 CBI Vs. S.K. Arora & Ors. Page No. 60 of 72 9.24 As regards Current Account No. 1624, it has already been observed that as per material available on record, such account had been opened by none other than accused Kamal Naresh Sharma (A-3). Account opening form has been proved as Ex. PW 20/W (D-210) and specimen signature card as Ex. PW 49/32 (D-209). Statement of such Current Account has been proved as Ex. PW 24/DB (D-218). Such account statement itself suggests that there was outstanding bal- ance, i.e. debit balance of Rs. 18,11,528.40 on 19.10.1995 which stood enhanced to Rs. 18,67,666.70ps on 12.11.1995. Such outstanding was adjusted by transfer- ring equivalent amount from one Demand Loan account. The number of such De- mand Loan account is not found mentioned in Ex. PW 24/DB but as per the case of CBI, such amount had come from one Demand Loan account No. 38 which be - longed to none other than the same accused Kamal Naresh Sharma (A-3). In this regard, prosecution has relied upon Ex. PW 24/2 (D-221). There is a correspond- ing entry regarding such adjustment dated 11.12.1995 in Ex. PW 24/2.
9.25 Admittedly, there is no other document related to such Demand Loan and, therefore, though there may be a distinct possibility that such Demand Loan account No. 38 might be of Kamal Naresh Sharma (A-3), it would have been certainly better if prosecution had been able to lay its hands on some additional documentary material to substantiate the same.
9.26 Fact, however, remains that A-3 cannot still be permitted to drive home any advantage because of non-availability of any such other document. Facts, which are specifically in his exclusive knowledge, are required to be explained by him only. After all, Current Account No. 1624 was his account. It was having outstanding/debit balance of more than Rs. 18 lacs. It is not a small amount particularly when year in question is of 1995 and, therefore, onus shifts on to him to explain as to from where such substantial amount of more than Rs.18 lacs came to his account for the purpose of said adjustment. He has not offered any explanation and his silence rather indicates that he had a direct connection with Demand Loan account No. 38 as well. No outsider or a third person would CC No. 532161/16 CBI Vs. S.K. Arora & Ors. Page No. 61 of 72 unnecessarily permit withdrawal of such huge amount from his account for obliging A-3 without any reason.
9.27 Sh. Mukul Kumar Verma (PW-24), in his deposition dated 8.12.2010, categorically claimed that loan account No. 38 was opened in the name of K.N. Sharma (A-3) at Basant Lok Branch of Oriental Bank of Commerce. He also stated that he had made credit entry of Rs. 10,26,660/- in his own handwriting on the basis of one credit voucher Ex. PW 20/X-40 passed by A-1. PW-24 Mukesh Kumar Verma has also proved ledger sheet of Demand Loan account No. 38 as Ex. PW 24/2. He has also made reference to various other credit and debit entries. In his cross-examination as conducted by accused S.K. Arora (A-1), he also made reference to statement of account pertaining to Current Account No. 1624 and proved the same as Ex. PW 24/DB and deposed that as per such statement of account, a sum of Rs.18,11,488.40ps was outstanding as on 25.9.1995.
9.28 I have gone through the cross-examination of this witness as conducted on behalf of A-2 and A-3 and there does not seem to be any specific suggestion to the contrary indicating that A-3 has no concern with said accounts.
9.29 Undoubtedly, one more loan account, i.e. Demand Loan account No. 1024 was also attributed to A-3. In this regard, prosecution though has relied upon LD-4 and LD-5, which have been proved as Ex. PW 20/X-6 (D-226) and Ex. PW 20/X-7 (D-227), but fact remains that these documents merely bear the name of applicant as 'Kamal Naresh Sharma'. There are no signatures and, therefore, it cannot be said with any certainty that such account had been opened by accused Kamal Naresh Sharma or that it belonged to accused Kamal Naresh Sharma. I have seen voucher Ex. PW 20/X-4 (D-221) but it also does not bear signature of any one from the side of borrower. Be that as it may, there cannot be any doubt that Current Account No. 1624 belonged to A-3 Kamal Naresh Sharma. He has utterly failed to explain as to how the outstanding amount of Rs. 18 lacs of his said CC No. 532161/16 CBI Vs. S.K. Arora & Ors. Page No. 62 of 72 account was adjusted.
CONCLUSION 10.0 My foregoing discussion would clearly establish that as far as Demand Loan Account No. 46 is concerned, it was actually held by A-2 R.K. Sharma under the fictitious name of H.K. Suri. Such account was created in connivance with Sh. S.K. Arora (A-1). A-3 Kamal Naresh Sharma was also privy to same. The principal outstanding in said Demand Loan Account No. 46 was projected as Rs. 43,91148/- in the charge-sheet. It was as per following calculation:-
Debit Entries (nineteen) Credit Entries (Ten) Principal liability Rs. 1,06,08,545 Rs. 62,17,397/- Rs. 43,91148/-
10.1 I have already deliberated upon all such debit and credit entries of said loan account. Though A-2 has out-rightly denied his association with such account, for his benefit and in order to ensure that there is no prejudice to him, I assume that amount under such alleged credit entries was deposited by him.
10.2 Prosecution, as already discussed, could not prove all the debit entries. Net result, therefore, would be as under:-
Debit Entries Credit Entries Principal liability (Proved on record) Rs. 63,47,638 Rs. 62,17,397/- Rs. 1,30,241 10.3 Indubitably, all the entries could not be proved for one reason or the
other but nonetheless it stands established that there was a clear fraudulent intention on the part of A-1, A-2 and A-3 to dupe Oriental Bank of Commerce by opening fictitious and benami account. Such fraudulent act amounts to cheating per se.
CC No. 532161/16 CBI Vs. S.K. Arora & Ors. Page No. 63 of 72 10.4 As regards liability attributed to M/s Shree Associates, prosecution has been able to prove the liability as projected in the charge-sheet.
10.5 Liability under CA No. 1413/CA No. 1523/CA No. 1571 which had been projected as Rs. 9.95 lacs (principal amount only) and total as Rs.
10,78,960/- (with interest) also stands proved.
10.6 Liability under Demand Loan Account No. 136 does not stand proved.
10.7 I have also seen the deposition of defence witnesses.
10.8 DW2 S.K. Sharma happens to be brother of A-2 R.K. Sharma and A-3 Kamal Naresh Sharma. According to him, he was the incharge of workshop of M/s Mool Chand Motors and they were running partnership business in the name of M/s Mool Chand Motors. He has been examined to show that one Mr. H.K. Suri and Parvesh Suri were having account in OBC, Basant Lok Branch and that one property was sold by DW2 S.K. Sharma, his brother N.K. Sharma and mother to Mukesh Jain and such transaction took place through H.K. Suri and Parvesh Suri. Photocopy of sale deed has been proved as Ex. PW23/1. However, deposition of said witness does not give any real impetus to the case of defence. He himself is not partner in M/s Mool Chand Motors and he also does not know as to how many account M/s Mool Chand Motors were having in OBC Basant Lok Branch. He is also not aware about the bank account of his brother K.N. Sharma. He also admitted that N.K. Sharma used to reside at 68/14, Gurgaon and R.K. Sharma in L-30-3, DLF Phase-II, Gurgaon during the relevant time. When he was asked about the various current accounts being held by A-2 R.K. Sharma, A-3 K.N. Sharma and M/s Mool Chand Motors, he pleaded his ignorance.
10.9 DW3 Narender Kumar Gupta is official from OBC, Basant Lok Branch who deposed that he tried to search for the summoned record but same was not available. He also claimed that he could not say whether statement of account of CC No. 532161/16 CBI Vs. S.K. Arora & Ors. Page No. 64 of 72 M/s K.B Enterprises 'proved as Ex. PW21/A' was containing correct entries or not. He did not deal with the current accounts and his duties were in the Loan Department. In his cross-examination, he did claim that entries were required to be made in Day Book Register and General Ledger and these were required to be checked by Branch Manager on daily basis. However, his testimony also does not take the defence story anywhere near innocence. DW4 B.K. Dobhal brought on record statement of account of CC Account No. 72 of M/s Mool Chand Motors. He claimed that statement of account of said account was seized by CBI and since it was an old record, same was no longer available in the bank either in ledger form or in digitized form. He deposed that CBI had seized the record and a copy of printout was kept by the bank which he proved as Ex. DW4/2. In his cross-examination, he claimed that he had no personal knowledge of said account. He also claimed that he was not sure whether documents mentioned in seizure memo were actually seized by CBI or not. He also admitted that such seizure memo was not having signatures of any CBI official and no date and place of seizure was mentioned in such memo. Testimony of DW5 Nand Kishore, official of Mahipal Pur Branch also does not help the defence as the documents, which defence wanted said witness to bring on record, were not traceable.
10.10 Sh. Arora remained branch head of Basant Lok branch from November, 1990 to April, 1996 and of Mahipalpur branch from April, 1996 to February, 1997. Number of such tainted accounts and the unauthorized openings of Demand Loan account and grant of overdraft happens to be of his tenure. He was instrumental in opening benami accounts with ulterior objective to procure undue benefit to private parties including A-2 and A-3 herein and sanctioned the loan without proper documents and without obtaining any security. On number of occasions, it seems that he purchased various cheques and bills of large amount which were converted into term deposit even without the consent of the party. According to Sh. Rao, by as such cunning modus operandi, accused has done window dressing of deposits as well as of advances. Sh. Rao has also claimed that in order to save himself and in order to avoid detection, accounts were CC No. 532161/16 CBI Vs. S.K. Arora & Ors. Page No. 65 of 72 frequently changed and old accounts were debited by transferring of the amount from the new accounts opened in the same fraudulent manner. Sh. Rao has also highlighted that the Demand Loans were raised without obtaining consent of the party. Number of fictitious accounts were opened and loan facility was extended to such account without execution of necessary documents or it was attempted to show that these were secured against bank deposits, number of which could not be found at all. This shows that either these were fake or some incorrect particulars were recorded merely in order to show that the accounts were secured. A-1 had connived with A-2 R.K. Sharma and his brother A-3 K.N. Sharma and siphoned off the money in an dishonest and illegal manner. Large number of entries were fabricated by A-1 to conceal his fraudulent act or to mislead his superiors and to, thereby, cause pecuniary advantage to himself and to his co-accused. Thus, the prosecution has successfully brought on record the fact that A-1 S.K. Arora had abused his office and had deployed corrupt and illegal means. Various forged entries were manufactured and accused R.K. Sharma (A-
2) had signed as Gautam Jajoria and Hari Singh on various documents and the bogus accounts were shown as genuine accounts in a fraudulent and dishonest manner. It is obvious that there was a clear cut conspiracy amongst A-1, A-2 and A-3 and merely because A-1 S.K. Arora is no more would not mean that said two private accused can go scot free of charge of conspiracy.
10.11 It is rightly said that a witness may lie but a document would not. The documents proved on record clearly go on to show that Sh. S.K. Arora (A-1) had abused his position and by adopting illegal means caused loss to bank and corresponding advantage to himself as well as to the concerned private accused persons. All the banking norms were thrown to winds. Numbers of important documents including FDRs were not traceable in the branch. Such fact also indicates that loans were given without obtaining any security. He permitted opening of various Demand Loan accounts in fictitious/benami names. He permitted unauthorized withdrawals and overdraft facility as branch incumbent. He had no business to permit advances in the shape of Demand Loan or Overdraft by CC No. 532161/16 CBI Vs. S.K. Arora & Ors. Page No. 66 of 72 creating fictitious/benami accounts or by opening such accounts against fake/non- existing FDRs, that, too, in the third party name.
10.12 There is invariably cross check mechanism in every branch. It is really intriguing as to how these fraudulent activities could not be detected during the internal inspection or during the external inspection. The concurrent auditors and Chartered Accountant are also to be equally blamed. Regional Office should have also been extra vigilant and should have monitored the branches regularly.
10.13 The science of identification of handwriting is not as perfect as the science of identification of fingerprints. However, opinion of handwriting expert cannot be rejected out-rightly for said reason alone. He gives his opinion on the basis of necessary scientific criteria and helps the courts to form their own independent decision by application of these criteria to the facts proved in evidence. Testimony of any such expert is relevant by virtue of Section 45 of Evidence Act. As a rule of caution and prudence, courts, generally, are hesitant in relying solely upon the testimony of any handwriting expert and, therefore, always try to find out some corroboration. In Tomaso Bruno Vs. Stae of U,P. (2015) 7SCC 178, it has been observed by Supreme Court that the purpose of an expert opinion is primarily to assist the court in arriving at a final conclusion but court is expected to analyse the report, read it in conjunction with the other evidence on record and then form its final opinion as to whether such report is worthy of reliance or not. My foregoing discussion clearly indicates that there are number of facts and circumstances which suggest that DL No. 46 was actually owned by A-2 R.K. Sharma. He is the beneficiary of many transactions made in said account and in light of the said facts, the testimony of handwriting expert needs to be given due weightage. Undoubtedly, the specimen handwriting of A-2 R.K. Sharma was taken on more than one occasion but that would not, by itself, mean and indicate that the second specimen set had been taken to obtain a false report. Expert is a neutral witness as well as a responsible government servant and he cannot be maligned without any substantial reason and, therefore, it cannot be CC No. 532161/16 CBI Vs. S.K. Arora & Ors. Page No. 67 of 72 held that opinion given by him is a procured one.
10.14 Undoubtedly, some other subordinate bank officials including Sh. R.N. Rattan should have been extra-vigilant and it was expected that they would have done their job without being influenced by anyone. However, merely because they were negligent would not, in itself, be sufficient to hold that they were part of any conspiracy. Departmental action was also taken against the concerned bank officials including S.K. Arora who was eventually removed from the services on 6.8.1997. Personal file of Sh. S.K. Arora was produced before the court by PW-3 S.K. Kakkar and he deposed such facts on the basis of such personal file. Signatures of accused S. K. Arora and of R.N. Rattan have been duly identified by number of bank officials. The Inspection of the branch was carried out during vigilance and such vigilance inquiry report of Basant Lok Branch has been proved as Ex. PW 16/A (D-382). I Reference be also made to testimony of PW-44 Sh. O. P. Sharma who had also investigated the irregularities in Mahipalpur Branch and he has proved his report as Ex. PW 44/A. Reference be also made to the testimony of PW-52 Sh. J.L. Ahuja who had also checked the record of Mahipalpur branch. It will also be important to note that two separate teams were constituted for each branch for such inspection and PW-52 Sh. Ahuja was made incharge of both the teams for necessary coordination. Reports pertaining to said two branches are contained in said D-382 and D-383.
10.15 As regards accused Vikram Singh (A-4) discussion with regard to Current Account no. 1445 has already been made. Sh. M.P. Singh, learned defence counsel admitted that A-4 was the holder of Current Account no. 1445 but he cannot be construed as culprit or conspirator merely because said amount had been deposited in his account. He has also claimed that such account was an old account which had been opened even prior to joining of S.K. Arora and, therefore, it cannot be said that the Current Account had been opened in furtherance of any conspiracy. Even as per deposition of PW-49 Sh. Sanjiv Sahni, he did not notice any irregularity in such account. He deposed that had he seen any irregularity in CC No. 532161/16 CBI Vs. S.K. Arora & Ors. Page No. 68 of 72 the said account, he would have reported the same and would have made complaint in this regard. PW-1 S.K.Singh, General Manager (Vigilance)/ Chief Vigilance Officer was the one who had submitted the complaint to CBI for investigation. He claimed that such complaint was lodged by him after carefully considering and examining the reports submitted to him by officials of Vigilance Department. In cross-examination, he claimed that there was no allegation against accused Vikram Singh (A-4). Merely because Vikram Singh happens to be the brother of Sh. Balraj Singh, Head Cashier of OBC and merely because the current account had been introduced by one of his co-accused would not make him liable for any conspiracy. Admittedly except for the aforesaid isolated entry of Rs. 4.88 lacs there is no allegation against accused Vikram Singh. He is not signatory to any document/voucher either.
10.16 Similarly, the involvement of A-5 Kulbhushan Sharma also does not stand proved to the hilt.
10.17 Accordingly, as far as A-4 Vikram Singh and A-5 Kulbhushan Sharma are concerned, they both are granted benefit of doubt and acquitted of all the charges.
10.18 In Shivnarayan Laxminarayan Joshi and others vs. State of Maharashtra (1980 (2) SCC 465)B, Apex Court observed that it was manifest "that a conspiracy is always hatched in secrecy and it is impossible to adduce direct evidence of the same. The offence can be only proved largely from the inference drawn from acts or illegal omission committed by the conspirators in pursuance of a common design." In Mohammad Usman Mohammad Hussain Maniyar and others vs. State of Maharashtra (1981 (2) SCC 443), it was emphasized that for an offence under Section 120-B, the prosecution need not necessarily prove that the perpetrators expressly agreed to do or cause to be done the illegal act and that the agreement may be proved by necessary implication. In State of Himachal Pradesh vs. Kishan Lal Pardhan and others CC No. 532161/16 CBI Vs. S.K. Arora & Ors. Page No. 69 of 72 (1987 (2) SCC 17), it was held that every conspirator need not take active part in the commission of each and every one of the conspiratorial acts for the offence of conspiracy to be made out. It added that :-
"The offence of criminal conspiracy consists in a meeting of minds of two or more persons for agreeing to do or causing to be done an illegal act or an act by illegal means, and the performance of an act in terms thereof. If pursuant to the criminal conspiracy the conspirators commit several offences, then all of them will be liable for the offences even if some of them had not actively participated in the commission of the offences."
10.19 In Kehar Singh and others vs. State (Delhi Administration) (1988 (3) SCC 609), Apex Court observed that most important ingredient of the offence of conspiracy was agreement between two or more persons to do an illegal act. It held that "generally, a conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same. The express agreement, however, need not be proved."
10.20 Thus, the law does not require that the act of agreement take any particular form and the fact of agreement may be communicated by words or conduct. Only it is to be shown that there was "a tacit understanding between conspirators as to what should be done." Where in pursuance of the agreement, the conspirators commit offences individually or adopt illegal means to do a legal act which has a nexus to the object of conspiracy, all of them will be liable for such offences even if some of them have not actively participated in the commission of those offences. Section 10 of the Evidence Act can also be pressed into service in such matters. To apply this provision, it has to be shown that (1) there is reasonable ground to believe that two or more persons have conspired together; and (2) the conspiracy is to commit an offence or an actionable wrong. If these two requirements are satisfied then anything said, done or written by any one of such persons after the time when such intention was entertained by any one of them in furtherance of their common intention, is a relevant fact against each of CC No. 532161/16 CBI Vs. S.K. Arora & Ors. Page No. 70 of 72 the persons believed to be so conspiring as well as for the purpose of proving the existence of conspiracy and also for the purpose of showing that any such person is a party to it.
10.21 Definition of "forgery" in Section 463 IPC is very wide. The basic elements of forgery are: (i) the making of a false document or part of it and (ii) such making should be with such intention as is specified in the Section viz. (a) to cause damage or injury to (i) the public, or (ii) any person; or (b) to support any claim or title; or (c) to cause any person to part with property; or (d) to cause any person to enter into an express or implied contract; or (e) to commit fraud or that fraud may be committed. As discussed above, in the instant case, there are more than sufficient circumstances suggesting the hatching of criminal conspiracy as well as forgery of several documents leading to commission of various offences.
10.22 Thus, it stands amply proved that in connivance with S.K. Arora (A-1), A-2 & A-3 had opened number of accounts and the amount was rotated from one account to another and so on. Opening of accounts in fictitious names itself amounts to forgery. A-2 had also fraudulently signed on number of documents in a deceitful manner. A-1, A-2 & A-3 were acting in league and in terms of conspiracy, false documents were prepared with intention to defraud the bank. Funds available in the bank were utilized as if these were private funds.
10.23 As an upshot of my discussion, I hold A-2 R.K. Sharma and A-3 Kamal Naresh Sharma guilty for offences under Section 120B IPC r/w Section 420, 467 IPC & Section 13 (1) (d) punishable under Section 13 (2) of Prevention of Corruption Act and convict them thereunder.
10.24 Simultaneously, A-2 R.K. Sharma is also held guilty and convicted for substantive offences under Section 420, 467 & 471 IPC.
CC No. 532161/16 CBI Vs. S.K. Arora & Ors. Page No. 71 of 72 10.25 A-3 Kamal Naresh Sharma is also held guilty and convicted for substantive offence under Section 420 IPC.
10.26 As far as offence under Section 477A IPC is concerned, same is, strictly speaking, personal to accused S.K. Arora and there is nothing to suggest that any of the private accused was also liable for any falsification of official record and, therefore, such charge fails.
Announced in the open Court (MANOJ JAIN)
On this 28th day of October 2017 Special Judge (PC Act) (CBI)-04
Central Distt: Tis Hazari Courts: Delhi
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