Delhi District Court
Cbi vs 1 Rakesh Sharma S/O Sh. S D on 23 March, 2012
IN THE COURT OF SH. V K MAHESHWARI :SPECIAL
JUDGE; TIS HAZARI DELHI
Corruption Case No. 88/2000
CBI Vs 1 Rakesh Sharma s/o Sh. S D
Sharma, MD, M/s SOL Ltd.,
r/o78/16, Village Ismalka, New
Delhi.
2 Rajesh Grover @ Rajesh
Kumar, s/o Late Sh. Shanti
Lal, r/o H No.8743, Rahatganj,
Roshnara Road, Delhi7
at present : House no.993,
Sector 39, LIG Flat, Gurgaon.
3 Upender Kumar Singh @
Upender Kumar s/o Suryadev
Singh, r/o 106, Humayaunpur
New Delhi (Opp. S.J. Enlave)
4 Pradeep Kumar Gupta s/o Ved
Prakash Gupta, r/o OD261 B,
Pitampura, Delhi34. (Assistant
Regional Manager, OBC,
Regional Officer Karol Bagh,
New Delhi
5 Ashwani Dhingra s/o Sh. Shiv
Narain Dhingra, r/o 22 Pusa
Road, New Delhi.
6 Dal Bahadhur singh s/o Late
C C No.88/2000 1/96
Babu Singh, r/o C88 Indira
Nagar Colony, Distt.
Raibareilly, UP.
R. C No. 3 (E)/99/EOW/I/DLI, ND
Under Section U/s 120 B,r/w 420, 467, 468,
471 and Sec. 13 (2) r/w Sec.
13 (1) (d) of P C Act, 1988.
Date of Institution of 11.12.2000
Case
Arguments concluded
on 14.3.2012
Date of Order 20.3.2012
Judgment
Facts of the case
Brief facts of the case according to prosecution are that accused Rakesh Sharma, Rajesh Grover and Upender Kumar Singh, all private persons, in collusion with accused Pradeep Kumar Gupta, Senior Manager ( Loans), Oriental Bank of Commerce , Safdarjung Enclave, New Delhi cheated the Oriental Bank of Commerce, Safdarjung Enclave Branch, C C No.88/2000 2/96 New Delhi to the extent of Rs.83.85 lacs by obtaining four demand loans, two each in the names of accused Rakesh Sharma and accused Rajesh Grover on 31.3.98 and 4.4.98 against false and forged 1198 Nos of Kisan Vikas Patras of the total value of Rs.1,19,80,000/ purportedly issued by SubPost Office, Armapur, Kanpur (U.P) in the month of July / August 1995.
2 Accused Rakesh Sharma, Rajesh Grover, Upender Kumar Singh, Ashwani Dhingra , Dal Bahadur Singh and Surender Narain Panday entered into Criminal Conspiracy with accused P K Gupta , Senior Manager ( Loans) Oriental Bank of Commerce, Safdarjung Enclave, New Delhi sometimes during the year 1998 with the object of cheating the Oriental Bank of Commerce , Safdarjung Enclave Branch and in furtherance of said criminal conspiracy accused P K Jain caused pecuniary advantage to the above named private persons by abusing his official position as a public servant and caused wrongful pecuniary loss to the extent of Rs.83.85 lacs to the Oriental bank of Commerce, S.J, New Delhi . 3 Accused P K Gupta did not properly verify the genuineness of 1198 KVPs of the total value of Rs. C C No.88/2000 3/96 1,19,80,000/ purportedly issued by Armapur Post office, Kanpur ( U.P.) These KVPs were pledged as security against the Demand Loans of total amount of Rs.83.85 lacs, the names of Rakesh Sharma and accused Rajesh Grover, talking into the consideration of the verification report regarding genuineness of the KVPs and also lien marked in favour of Oriental Bank of Commerce, S.J Enclave , N Delhi submitted by accused P K Gupta. Later on these KVPs were found to be stolen and forged and thus the KVPs were not issued by Armapur Post Office , Kanpur. The act of accused P K Gupta by not verifying the genuineness of said KVPs has caused wrongful pecuniary loss to the Bank.
4 Accused Rakesh and Rajesh Grover vide their applications dated 30.3.1998 on a plain paper requested the Branch Manager, OBC Safdarjung Enclave New Delhi for demand of loans against KCPs.
5 Sh D K Bhaskar, the Branch Manager vide his letter dated 30.3.98 deputed Sh P K Gupta, Sr Manager ( Loan) to verify the genuineness of the said KVPs and also get the lien marked on all the KVPs in favour of bank from the issuing Post Office, Armapur, Kanpur . P K Gupta accompanied by C C No.88/2000 4/96 Upender Kumar, Junior Accountant of accused Rakesh Sharma left Delhi for Lucknow by Sahara Flight No. S251 dated 30.3.98. At Lucknow Airport accused Ashwani Dhingra received them and took both of them to in a Maruti Van to Armapur P O, at Kanpur . Dal Bahadur Singh who was waiting at Armapur PO took P K Gupta and Surender Narain Panday( now deceased ) SubPostmaster, Armapur PO at about 1715 hrs when the working hours of the post office were over. S.N Panday made endorsement on 20 KVPs out of 1198 KVPs which accused P K Gupta took and left Armapur PO at about 17.30 hrs for Delhi via Lucknow accompanied by accused Upender Singh . The remaining 1178 KVPs were left with accused D B Singh to get the lien marked through accused S N Panday and bring to Delhi. On the same day i e 30.3.98 accused P K Gupta and accused Upendera Singh returned to Delhi by flight No.IC412 of Indian Airlines . Thus accused P K Gupta without properly verifying to KVPs and without getting the lien marked on the remaining KVPs returned back to Delhi.
6 The aforesaid KVPs were stolen blank and were dispatched by India Security Press, Nashik Road vide Railway C C No.88/2000 5/96 Invoice No.5KVP/385 dated 10.3.97 to Circle Stamp Depot, West Bangal Circle, Calcutta. The KVPs were stolen from Railway Wagon in transit from Nashik Road to Howrah. 7 Accused P K Gupta, on 31.3.98, being Senior Manager ( Loans) got the necessary loan forms filled up in the names of accused Rakesh Sharma & accused Rajesh Grover and obtained their signatures wherever necessary on the loan documents . Accused P K Gupta then recommended for sanction of Demand Loans of Rs.15 lacs each to accused Rakesh Sharma and accused Rajesh Grover on 31.3.98. Shri D K Bhaskar, the Branch Manager, on recommendation of accused P K Gupta sanctioned two demand loans to accused Rakesh Sharma & accused Rajesh Grover of Rs.15 lacs each on 31.3.98 itself against KVPs as security. The sanctioned amount was then disbursed on 31.3.98 itself. 8 Accused P.K Gupta, P K Gupta got further demand Loans Forms filled up for two more Demand Loans in the name of accused Rakesh Sharma & accused Rakesh Grover on 4.4.98. He obtained their signatures on the loan documents. Accused P K Gupta then recommended for sanction Rs.26.85 lacs to accused Rakesh Sharma & Rs 27 lacs to accused C C No.88/2000 6/96 Rakesh Grover for sanction on 4.4.98, which was sanctioned by Shri D K Bhaskar, Branch Manager and the entire amount was disbursed within 2/3 days. The amount of all the four demand loans totaling to Rs. 83.85 lacs were withdrawn by accused Rakesh Sharma, Rajesh Grover and Upender Kumar from time to time leaving a balance Rs.5.34 lacs as on 16.4.98. 9 Sh Laxmi Kant Chanana, Branch Manager, PNB, Koshambi Branch Ghaziabad U.P visited OBC S.J Enclave N Delhi and informed Sh D B Bhaskar, the Branch Manager that the KVPs pledged for demand loans with OBC are reported to be stolen and forged as the said accused Rakesh Sharma had also approached him for loans against KVPs and during verification,Sh Chanana came to know that the KVPs are stolen and forged. On 16.4.98 Sh D K Bhaskar accompanied by accused P K Gupta proceeded to Kanpur and made inquiries with the postal authorities which reveal that the KVPs pledged for the above demand loans were stolen and not issued from Armapur Post office. Sh D K Bhaskar reported this matter to his Senior Bank Officer who with their sincere efforts recovered the entire loan amount with interest during the month of April 1998.
C C No.88/2000 7/96 10 Copies required U/S 207 Cr P C supplied to accused. After hearing both the parties vide order dt. 25.9.2002 charge had been framed against all the accused for the offence punishable U/s 120B r/w Sec. 411,419, 420,467, 468 & 471 IPC and Section 13 (2) r/w Sec. 13 (1) © & (d) of P C Act. Charge for substantive offences U/s 420/471 IPC r/w 467,468 & 411 IPC framed against accused Rakesh Sharma and Rajesh Grover and charge for offence; U/s 13 (20 r/w 13 (1) (d) & (d) of P C Act was framed against accused Pardeep Kumar Gupta. All the accused pleaded not guilty to the charge and claimed trial, hence, this trial.
PROSECUTION EVEIDENCE.
11 Prosecution, in order to prove its case, has produced following witnesses:
PW1 Rajiv Bhargava has proved account opening form and specimen signatures card Ex PW1/A to Ex PW1/C. PW2 Sh. Baldev Singh Sethi has also proved account opening Form Ex PW1/A , specimen signatures card Ex PW1/B and specimen signatures card Ex PW1/C. PW3 Shri S.R. Soorma has proved application form Ex C C No.88/2000 8/96 PW3/A, letter addressed to Post Master Armapur Post Office, Kanpur , Ex PW3/B to PW3/G, application for transfer of NSCs a security marked PW3/H to Mark Ex PW3/M. He has proved photocopies of letters addressed to Post Master, Armapur Post office Kanpur Mark Ex PW3/N to mark Ex PW3/S, application for transfer of NSCs Mark PW3/T to Mark PW3/Y and the sanction letter Ex PW3/C. He also proved loan documents Ex PW3/D to PW3/S, debit slips Ex PW3/T1, credit vouchers Ex PW3/U1 to U4, attested copies of ledger of these demand notes Ex PW3/V1 to V4, statement of account Ex PW3/W1 and W2 , cheques Ex PW3/X1 to X6, Ex PW3/Y1 to Y3 , Ex PW3/Z1 to Z8 and pay slips Ex PW3/ZA1 to ZA3.
PW4 Sh. Vinod Kumar Jain has proved seizure memo Ex PW4/A, flight coupon Ex PW4/B and PW4/C. PW5 Sh. Rajinder Kapoor, Company Secretary he has not proved any document. He has deposed orally.
PW6 Sh. B S Gaur has proved the seizure memo Ex PW6/A, ExPW6/B and weeding out register Ex PW6/C, copy of report Ex PW6/D, copy of letter issued him Ex PW6/E and specimen of stamp of Armapur Post office Ex PW6/F and enquiry report Ex PW6/G. C C No.88/2000 9/96 PW7 Air Marshal Dushyant Singh , has proved cheques Ex PW7/A. PW8 Sh Sheo Pal , Sub Post Master Armapur has also proved stock register Ex PW6/A , Kisan Vikas Patra Ex PW6/B , photocopies of application for transfer of NSCs Ex PW3/N to PW3/Y. PW9 Nattha Prasad Hans has also proved stock register Ex PW6/A , Kisan Vikas Patra Ex PW6/B , photocopies of application for transfer of NSCs Ex PW3/N to PW3/Y. PW10 Sh Param Lal, Supervisor in Armapur Post office has also proved stock register Ex PW6/A , Kisan Vikas Patra Ex PW6/B , photocopies of application for transfer of NSCs Ex PW3/N to PW3/Y. PW11 Sh. Dinesh Kumar Bhaskar , has also proved account opening form Ex PW1/A, loan application Ex PW3/B , loan application moved by Rajesh Sharma Ex PW3/K. He has also proved KVPs Ex PW6/B , letter dated 30.3.98 Ex PW2/A ,letters Ex PW3/B to PW 3/G and letter Ex PW3/B to PW3/G. He has proved documents Ex PW3/H to J, recommendation of loan in favour of Rajesh Grover Ex PW3/P. He has proved document Ex PW3/Q to S, attested C C No.88/2000 10/96 copy of ledger sheet of account No.8592 of Rakesh Sharma Ex PW3/W. He has proved complaint Ex PW11/A and Seizure Memo Ex PW11/B. PW12 Sh. Sameer Kumar has proved his complaint Ex PW12/A made to CBI .
PW13 Inspector Bipin Kumar Singh Sub Inspector RPF Dhanbad , has not proved any document.
PW14 Mahavir Prasad has proved seizure memo of document Ex PW14/A and his inquiry report Ex PW14/B. PW15 Sh. Vijay Kumar Gupta has proved sanction order Ex PW15/A for prosecution of accused Pradeep Kumar Gupta.
PW16 Sh. Laxman Dixit has proved photocopy of FIR Ex PW16/A. PW17 Laxmi Kant Chanana has proved the documents already proved by other witnesses.
PW18 Sh. Dalip Kumar Mishra has proved the documents already proved by other witnesses.
PW19Sh. Subhash Chander Sethi has proved Kishan Vikas Patras in the series of 46 CC in the name of Rajesh Grover and Rakesh Sharma collectively Ex PW19/1.
PW20 Sh. Sahay Jo Jo has proved Production Memo Ex C C No.88/2000 11/96 PW20/A, certified photocopy of open/part delivery report Ex PW20/B, photocopy of Parcel Way Bill Ex PW20/C and also proved the documents already proved by other witnesses.
PW21 Sh. Girindra Mohan Kumar has proved the documents already proved by other witnesses.
PW22 Sh. Vishvnath Kumar has proved the documents already proved by other witnesses.
PW23 Sh. D N Verma has proved Production Memo Ex PW23/A, photocopies of indent supply register running into two pages Ex PW23/A1 collectively and photocopies of letter dt. 12.5.98 running into three pages Ex PW23/A2 collectively.
PW24 Sh. Madav Mukherjee has proved Indent Ex PW24/A, D67 (a1) Ex PW24/B, Short Certificate Ex PW24/C, letter in three pages Ex PW24/D1to D3 and letter dt. 13.5.98 Ex PW24/E. PW25 Sh. Ram Kumar Dwivedi has proved the documents already proved by other witnesses.
PW26 Mohinder Singh has proved Q3606 and Q3607 Ex PW26/A1, S8 & S9 Ex PW26/A3, and S81 & S86 Ex PW26/A4, S14, S17, S25, S32, S87, S88 abnd S90 Ex C C No.88/2000 12/96 PW26/A5 to ExPW26/A11, S34, S45 and S53 Ex PW26/A12 to Ex PW26/A14, S54, S59, S67 and S80 Ex PW26/A15 to Ex PW26/A19, S91, S94, & S103 to S106 Ex PW26/A20 to Ex PW26/A27, S95 Ex OPW26/A28, and S101 Ex PW26/A29 and original negatives Ex PW26/A30 to Ex PW26/A32, his opinion Ex PW26/B1, his detailed reason in support of his opinion Ex PW26/B2 and forwarding letter Ex PW26/C1.
PW27 Sh. P K Khanna has proved FIR dt. 28.7.99 Ex PW27/A and chargesheet Ex PW27/B. PW28 Sh. N K Sen Gupta has proved zerox copy of original FIR Ex PW28/A, Production memos Ex PW28/B and Ex PW28/C and also proved the documents already proved by other witnesses.
DEFENCE OF ACCUSED AND DEFENCE EVIDENCE
12 Statements of all the accused U/s 313 Cr PC recorded wherein they have denied all the allegations made against them and evidence produced by the prosecution. They have stated that they are innocent & have been falsely implicated in this case.
13 Accused Rakesh Sharma has stated that he did C C No.88/2000 13/96 not approach the bank for loan. He was approached by Sh Upender Singh of M/S Davendra & Associates for arranging loan for him and his company M/S SOL Limited. Sh Upender Singh informed that he and his associates had good contacts with the banks and would arrange the loan after charging professional fee. All the processing etc for loan was done by them. He had no knowledge about the KVPs or any other security submitted by them with Bank or other financial institutions. The said Devender & Associates and Upender Singh had also arranged other loans for his company from other financial institutions and private party . As soon as he came to know that there was some problem with the documents / securities submitted by the aforesaid person, he immediately return the entire loan with interest. 14 Accused P.K. Gupta has stated that he is innocent and falsely implicated in this case only to keep a public servant in the case due to mis conception of CBI . He discharged his duty honestly as per the rules and procedure of the bank and under direction and supervision of Senior Branch Manger Sh Dinesh Kr Bhardwaj. Nobody suffered any loss or any C C No.88/2000 14/96 wrongful gain in this case as the loan amount was recovered with interest within 15 days because of his best efforts. 15 Accused Rajesh Grover has stated that he has been falsely implicated in this case as he was an employee of Rakesh Sharma .
16 Accused Ashwani Dhingra stated that he was not involved in the aforesaid case in any manner. 17 Accused D.B Singh has stated that he has been falsely implicated in this case and he had not played any role in this case.
18 Accused Upender Singh has stated that he has been falsely implicated in this case as he was working as Account Assistant on salary basis with Rakesh Sharma who was M.D of SOL India.
19 In their defence accused have examined following witnesses:
20 DW1 ASI Tejpal who has proved copy of complaint of Air Marshall Dushyant Singh vide Ex DW1/A. 21 DW2 Sh Mukesh Bhatnagar, has deposed orally and not proved any record.
22 DW3 Sh A D Mehta has proved the copy of C C No.88/2000 15/96 Advances Manual VolumeII of Oriental Bank of Commerce Ex DW3/D1.
23 DW4 Sh Narender Kumar, Ahlmad has proved the copy of Charge sheet in case RC No.5(E) /98 BS&FC CBI, Ex DW4/A. 24 DW5 Sh Vikas Kumar , Ahlmad has proved the copy of charge sheet RC No.2(E)/99/EOWI/DLI ,Ex DW5/A and copy of charge framed against accused Ex DW5/B. PROSECUTION ARGUMENTS 25 Ld. Prosecutor Sh. Brajesh Shukla argued that prosecution has examined 28 witnesses for bringing home the charges framed against the accused persons. PW6 has stated that Circular of Head Post Office declared that KVPs of 46 CC series had been stolen. For strengthening the issue of theft of KVPs, evidence of PW16, PW13, PW14, PW18, PW20, PW21 and PW22 may be taken into consideration which gives the common conclusion that the KVPs were stolen at Patna from Railway Wagon No. CR64307 during the transit from Nasik to Hawrah.
26 PW1, PW2 and PW3 have categorically proved the fact that account No.8592 and 8591 were opened by C C No.88/2000 16/96 Rakesh Sharma and Rajesh Grover in Oriental Bank of Commerce, Safdarjung Enclave, New Delhi. According to PW7 Rakesh Sharma was the owner of M/s Sol, dealing with cattle field and allied products where he had invested Rs.2 lacs at the rate of 15% interest for a year PW7 could anyhow recover his amount from accused Rakesh Sharma with the help of police at Police Station; it implies the conduct of accused Rakesh Sharma as trickery person.
27 PW11 has proved the fact that accused Rakesh Sharma used 598 KVPs in the series of 46 CC in his own name and Rajesh Grover used total 600 KVPs in the series of 46 CC for taking the loan of total Rs.83.85 lacs. Since PW6, PW8, PW9 and PW10 have very categorically proved the fact that no KVP in the series of 46 CC were issued from Armapur post Office, Kanpur as the said series do not find mention in Ex PW 6/A i.e. Stock Register maintained at said Post Office. Further, Enquiry Report Ex PW6/G corroborates the issue of non issuing of KVPs having the series of 46 CC as such it may be very safely adhered that accused Rakesh Sharma and Rajesh Grover were having the knowledge that the KVPs which were pledged by them were not genuine but bogus, fake C C No.88/2000 17/96 or stolen.
28 According to evidence of PW11 accused Rajesh Grover submitted the application Ex PW 3/K alongwith bogus KVPs Ex PW 6/B. When PW11 came to know through Sethi, Banga and Chandna of PNB that the KVPs of Armapur post Office, Kanpur are bogus , he directed accused Pradeep Kumar Gupta to verify from Armapur post Office, Kanpur, who issued Demand Note of Rs.15 lac and Rs.26.85 lacs in favour of accused Rakesh Sharma and accused Rajesh Grover on sanction letter dt. 31.3.98. Accused Pradeep Kumar Gupta had also issued Demand note of Rs.27 lacs in favour of Rajesh Grover. According to PW3 there could not be made more than 8 transactions in a month in saving bank account but perusal of the record relating to account No. 8592 could give the impression that dealings in this account were made in hush and rush. Being Loan Manager, accused Pradeep Kumar Gupta was the competent authority to process and recommend for the loan, which according to PW3 were not properly maintained and to this effect he has proved Ex PW 3/B to Ex PW 3/F and further Ex PW 3/M to Ex PW 3/O .
29 PW11 has also proved the fact that accused C C No.88/2000 18/96 Pradeep Kumar Gupta had marked the lien of only 20 KVPs, remaining KVPs were marked by the parties unauthorisedly. It is correct that as per instruction of senior officer (PW11), accused Pradeep Kumar Gupta visited Armapur post Office, Kanpur, but nowhere it can be gathered that he was instructed not to carry on his assignment of lien marking without due care and even not staying next day in discharge of his duties. This fact has been proved by PW15, who has proved sanction, during his cross examination.
30 PW11 has identified the signatures of Accused Rakesh and Rajesh on loan documents . He has also proved the fact that accused Rakesh Sharma and Rajesh Grover were introduced by Accused Upender Kumar Singh as they wanted to take loan against KVPs. PW17 has also corroborated the fact of taking loan against KVPs by A1 and A2. PW5 has stated that Accused Upender Kumar Singh was an employee of D K Aggarwal who was CA of M/s SOL Ltd. and subsequently he joined the services in SOL Ltd., the company of accused Rakesh Sharma . It is on record that flight coupon Ex PW 4/B from Lucknow to Delhi for 30.3.98, in the name of Accused Upender Kumar Singh and flight coupon Ex PW 4/C C C No.88/2000 19/96 was in the name of accused Pradeep Kumar Gupta, the Loan Manager of Oriental Bank of Commerce, Safdarjung Enclave, New Delhi were purchased in cash. When these evidence are taken together it would give the sense that Accused Upender Kumar Singh , an employee of M/s SOL Ltd. was having complete knowledge in respect of bogus/fake KVPs which were stolen and were in the process of being used by his owner Rakesh Sharma for taking huge loan through accused Pradeep Kumar Gupta.
31 PW 17 and PW19 have made it crystal clear that in Meghdoot Hotel of Lucknow accused Ashwani Dhingra and Dal Bahadhur Singh, on call of Rajesh Grover met them and accompanied to Armapur post Office, Kanpur . It is also in the evidence of PW17 that these two accused persons were well known to S N Pandey, Sub Post Master (since dead). They convinced PW17 to return Meghdoot Hotel , Lucknow where S N Pandey, (since deceased) the then Sub Post Master, Armapur post Office, Kanpur would mark the lien on KVPs . The act of convincing on the part of accused Ashwani Dhingra and Dal Bahadhur Singh to PW17 implies the fact that they were fully knowing about bogus KVPs which were in the C C No.88/2000 20/96 series of 46 CC used for taking huge loan from Oriental Bank of Commerce, Safdarjung Enclave, New Delhi by A1 and A2. It is very well corroborated by PW11 who has stated that remaining KVPs i.e. 1198 20 =1178 were left by accused Pradeep Kumar Gupta with accused Dal Bahadhur Singh for lien marking and the same were presented on 30.3.98 in bank when process and recommendation for granting loan was accorded by him ( accused Pradeep Kumar Gupta ). Further PW25 has established the fact that accused Dal Bahadhur Singh was having close acquaintance with S N Pandey and his visiting and purpose of visiting to Armapur post Office, Kanpur was in furtherance of ulterior motive to get issue the loan on the basis of bogus KVPs in favour of A1 and A2. 32 Since PW17 was not cross examined on behalf of Ashwani Dhingra, it goes intact that the version of PW17 has been admitted by accused Ashwani Dhingra and at this stage he may not be permitted to stretch the facts otherwise. PW12 has proved complaint to CBI Ex PW 12/A. PW23 has proved the facts relating to stamp used at Nasik for transmitting the KVPs u in wagon No. CR 64307. PW24 has proved the indent Ex PW 24/A for KVPs from Nasik. PW26 has proved GEQD C C No.88/2000 21/96 report PW27 is the IO of the case and he has proved entire investigation which fortifies the allegations made against accused persons. PW28 has proved the FIR of the case. It is not only pertinent but glaring point that accused Rakesh Sharma and Rajesh Grover have paid the loan alongwith interest when they came to know that the episode of bogus /fake/stolen KVPs have been universally known to all. 33 It is argued that in view of above discussion prosecution has proved its case against all the accused beyond reasonable doubt hence accused may be convicted. DEFENCE ARGUMETNS 34 It is argued on behalf of Rakesh Sharma that he is a victim of conspiracy, accused Upender Kumar who was an employee of D K Aggarwal, had met him and assured him for arranging the loan in question . Accused Rakesh Sharma had not filed or deposited the alleged KVPs in the bank . Accused Upender Kumar alongwith his other coaccused had arranged the KVPs. Upender Kumar was known to the bank officers of OBC , Safdarjung Branch. He had arranged the loan . 35 It is argued that there is no evidence that accused Rakesh Sharma had made any forgery. Even hand writing C C No.88/2000 22/96 expert has not given any positive opinion on any of the document with regard to his writing / signatures in this case, hence no offence U/S 467/468 IPC is made out against him . Sec 379 is not mentioned in the FIR. When the theft of KVPs has not been proved on the judicial file , accused cannot be charged U/S 411 IPC for the KVPs in question. KVPs in question, were not recovered from the possession of accused Rakesh Sharma hence he cannot be convicted for the offence punishable U/S 411 IPC. Accused was not having any knowledge with regard to any forgery in the KVPs hence without menseria he cannot be convicted U/S 471 r/w Section 420/467/468 IPC.
36 It is argued that for the offence punishable U/S 420 IPC existence of dishonest intention to cheat at the time of commission of offence, is must, but prosecution has failed to prove any dishonest intention on the part of accused. The moment accused Rakesh came to know that there was some discrepancies in the KVPs he had immediately returned the loan amount alongwith interest thus bank had neither suffered wrongful loss nor accused had obtained any wrongful gain. 37 In nut shell it is argued on behalf of Rajesh C C No.88/2000 23/96 Grover that at the relevant time he was an employee of accused Rakesh Sharma . He had not obtained even a single penny for himself . Ld Defence counsel referring the statement of PW. 1,PW2,PW3, PW11 and PW12 argued that accused Rakesh Sharma was in need of money, hence he had obtained the loan in question in the name of accused Rajesh Grover . Accused Rajesh Grover had not arranged any KVPs or deposited the same in the bank as security . He is a victim of circumstances. The entire loan amount alongwith interest had been immediately paid to the bank.
38 In nutshell it is argued on behalf of accused Upender that he was an employee in the company of accused Rakesh Sharma M/S SOL limited . In this regard Ld Defence counsel has referred the statement of PW 11 , PW5 and Charge framed by my Ld Predecessor Sh R K Gauba and allegations made in the charge sheet . It is argued that accused Upender Kumar had neither applied for loan nor obtained any amount for himself out of the alleged loan transaction. He had no concerned with the KVPs in question. He was neither a high ranking officer or executive involved in day to day business of the company . His duties and responsibilities were to assist in C C No.88/2000 24/96 maintaining the account of the company. He used to accompany M.D whenever he visited the bank. He was neither the representative of MD of the company nor authorized signatory of the company . All bank withdrawal had been handled by accused Rakesh Sharma MD of the company. Accused Upender Kumar had accompanied P K Gupta Branch Manager OBC to Armapur, Kanpur as per directions of accused Rakesh MD of the company. He is in no way connected with the alleged conspiracy. There is no meeting of mind between him and accused . Ld Defence counsel has placed reliance on Baburao Bajirao Patil Vs State of Maharashtra reported as 1971 (3) SCC 432, in support of his argument. The detailed written submission has been filed on his behalf, which is on the file, hence I am not incorporating his arguments in this judgment on account of brevity. 39 In nutshell it is argued on behalf of accused No.4 P K Gupta that he was working as loan officer in the OBC Safdarjung Enclave branch at the relevant time . PW11 Dinesh Bhaskar was his Branch Manager , on 30.3.98 he was directed by his Branch Manager to assign the lien of bank on 1178 KVPs therefore, in compliance of the order of his Branch C C No.88/2000 25/96 Manager he had gone to Sub Post office Armapur , Kanpur. The to and fro traveling arrangement from N Delhi to Kanpur, was so arranged, that he had little time hence he had reached at about 5.15 pm on 30.3.98. His Branch Manager had directed him to come back on the next date i e 31.3.1998 positively being the closing day of financial year, hence after getting assigned lien of the bank on 20 KVPs, he rushed back to Delhi and reported to his branch Manager on 31.3.98 itself, leaving the remaining KVPs with the S N Panday Post Master, Armapur which were brought back by the representative of the accused on 31.3.98 itself in the afternoon. 40 Ld Defencde counsel referring the statement of PW 11, PW12, argued that there was no lapse on the part of accused P K Gupta in doing so, as PW 11 in his cross examination has disclosed the three modes of getting the lien marked on the KVPs. It is argued that all the relevant prosecution witnesses have deposed that there is no lapse or negligence in duty on the part of accused P K Gupta. 41 It is also argued on his behalf that sanction for his prosecution, Ex PW15/A, accorded by PW Vijay Kr Gupta is illegal, accorded without due application of mind in C C No.88/2000 26/96 mechanical manner at the instance of IO of this case. It is argued that charge sheet is the verbatim of sanction order hence actually the sanction order was dictated by the IO and not by PW 15. It is argued that according of sanction is not a mere formality but sacrament . Ld Defence counsel referring the sanction order Ex PW15/A, argued that sanctioning authority has mentioned several things which are not in the evidence. He has also mentioned some facts in the sanction order which are not on the record. In these circumstances it is argued that sanction for the prosecution of accused in this case is illegal, hence he may be acquitted on this ground alone. In support of his arguments Ld defence counsel placed reliance on the following authorities.
Jaswant Singh Vs State of Punjab AIR 1958 SC 124 K C Singh Vs CBI Crl Appeal No.976/2010 Raghuvir Singh Vs State of Haryana AIR 1974 SC 1516 Mohd Iqbal Ahmad Vs State of AP AIR 1979 SC 677 Jai Singh & Ors Vs State of Jammu & Kashmir AIR 1985 SC 764 Juwarsing Vs The State of M.P AIR 1985 SC 373 Gopalanachari Vs State of Kerala AIR 1981 SC 674 Jamuna Chaudhary State of Bihar AIR 1974 SC C C No.88/2000 27/96 1822 42 As the detailed written submission running in 35 pages and additional written submission running in four pages filed on behalf of accused P K Gupta, is on judicial file, hence on account of brevity I am not incorporating his arguments in detail in this judgment, however I will deal his argument at appropriate stage.
43 It is argued on behalf of accused Ashwani Dhingra that there is no evidence against him that he had arranged the KVPs involved in this case. PW17 Laxmi Kant Chanana has deposed that on 13.4.98 he had gone to Kanpur by Air alongwith Rajesh Grover after reaching Lucknow, Grover hired a taxi for Kanpur . On reaching Kanpur Rajesh Grover had taken him to Hotel Meghdoot where Ashwani Dhingra and D B Singh had came . PW 17 was Branch Manager in PNB Kushambi Branch Ghaziabad . He has nothing to do with the loan advanced by OBC Safdarjung Enclave Branch. It is argued that similarly PW 19 Subhash Chandra Sethi had gone to verify the KVPs furnished by Bhushan Grover and his wife Archana Grover in PNB Malviya Nagar Branch for getting the lien marked from Armapur Post C C No.88/2000 28/96 Office, Kanpur to whom accused Ashwani Dhingra and D B Singh allegedly met. It is argued that none of the witness pertaining to loan advanced by OBC Safdarjung Enclave Branch has named accused Ashwani Dhingra as the person ever met them with regard to KVP in question. In nutshell it is argued that there is no evidence against accused Ashwani Dhingra in this case.
44 It is argued on behalf of accused Dal Bahadur Singh that there is no evidence against him that he had played any role with regard to KVPs involved in this case. PW17 and 19 are not related to the KVPs involved in this case . PW25 has deposed about the asking of D B Singh with regard to receiving of payment in cash of some KVPs which he was having with him at that time, thus even he has not deposed anything against accused D B Singh with regard to KVPs involved in this case. It is argued that except these three witnesses none of the independent witness has even named Dal Bahadur in their statement made in this Court. It is argued that in these circumstances, he may be acquitted. SANCTION AND PUBLIC SERVANT:
45 Ld. Defence Counsel in nutshell argued that in C C No.88/2000 29/96 this case sanctioning authority has accorded sanction in a mechanical manner without due application of his mind.
Chargesheet is the verbatim of sanction order, therefore, it is proved that actually sanction order was dictated by the IO of this case and not drafted by PW15 Sh.Vijay Kumar Gupta. It is also argued that sanction order Ex PW15/A contains such facts which are not in evidence, therefore, sanction for the prosecution of accused is bad, hence, liable to be acquitted. 46 It is undisputed that accused Pradeep Kumar Gupta in the month of March, 1998 was working as Sr. Manager Loans in Oriental Bank of Commerce, Safdarjung Enclave Branch, therefore he was a public servant . Even this fact has not been disputed on behalf of accused during the trial and at the time of addressing final arguments. Thus it is proved beyond reasonable doubt that at the relevant time accused Pradeep Kumar Gupta was a public servant. 47 Prosecution, in order to prove sanction order has produced PW15 Sh. Vijay Kumar Gupta, the then General Manager Personnel in Oriental Bank of Commerce. He has deposed that in the year 2000 he was working as General Manager Personnel in Oriental Bank of Commerce and C C No.88/2000 30/96 looking after staff matter including disciplinary action . He was appointing and dismissal authority upto Scale IV of the bank. Thus, by virtue of his post he was competent to remove accused Pradeep Kumar Gupta from his post. On 30.11.2000 he had accorded sanction for the prosecution of accused Pradeep Kumar Gupta in this case after carefully examining the material including the documents and statement of witnesses . He has specifically deposed that after examining the material he found prima facie case against accused Pradeep Kumar Gupta hence accorded sanction for his prosecution, ex PW15/A which bears his signatures.
48 This witness has been cross examined at length on behalf of accused P K Gupta. In his cross examination he has stated that P K Gupta reached late at about 5.15 PM when the Post office working hours were over. He got a few KVPs discharged and left the rest with the client to get the lien marked. He further stated that Loan Officer should not handed over documents for marking lien . He has deposed that he discussed with the Enquiry Officer as well as IO before awarding the sanction for prosecution of accused. He has also stated in his cross examination that Loan Officer Sh. P K C C No.88/2000 31/96 Gupta was duty bound to ensure the genuineness of documents as well as marking of lien on the KVPs from the Post Office which he had not done. He has denied the suggestion that P K Gupta had taken all precautions and taken all the action required from him in the matter of verification of genuineness and marking of lien of the bank instruments and reported every fact to his Manager, D K Bhaskar. This witness has also denied the suggestion that he had accorded the sanction on the dictation of CBI. He has also denied the suggestion that he had disclosed wrong facts in the sanction order. 49 It is argued on behalf of accused that sanction order was dictated by the IO as the charge sheet is the verbatim of the sanction order. In this regard I have also carefully gone through the statement of PW27 Sh. P K Khanna, IO of this case. IO has been cross examined at length on behalf of accused Pradeep Kumar Gupta . Not even a single suggestion has been given to IO on behalf of accused Pradeep Kumar Gupta that he had dictated the sanction order . 50 It cannot be presumed that sanction order was dictated by IO merely that chargesheet is verbatim of sanction order. Sanction order is dt. 30.11.2000 while chargesheet is dt. C C No.88/2000 32/96 8.12.2000, thus it is apparent that charge sheet was drafted after according of sanction by PW15. In these circumstances it is proved beyond reasonable doubt that sanctioning authority had no occasion even to peruse the charge sheet. In view of above discussion there is no merit in the argument that sanction order was dictated by IO and not by the sanctioning authority Sh. Vijay Kumar.
51 From the perusal of sanction order it is clear that it is a detailed order running in four sheet, containing all the material facts and having also the reference of documents/evidence against the accused on the file. This order reflects that sanctioning authority has passed this order after due application of mind. Mere appearing of some additional averments in the sanction order does not mean that sanctioning authority had not applied his mind. It is not a sufficient ground to discard the sanction order particularly when the sanctioning authority specifically deposed that after applying his mind to the facts and circumstances of the case he found a prima facie case against accused Pradeep Kumar Gupta, hence accorded the sanction for his prosecution.
C C No.88/2000 33/96 52 Hon'ble Supreme Court has held that where the sanction order itself is a speaking order in such circumstances it is not necessary to prove it by leading evidence that sanctioning authority has applied his due mind. Reliance is placed on C S Krishnamurthy Vs. State of Karnataka 2005 IV AD (S.C.) 141 wherein in para No.9 it is observed as follows:
"Therefore, the ratio is sanction order should speak for itself and in case the facts do not so appear, it should be proved by leading evidence that all the particulars were placed before the sanctioning authority for due application of mind. In case the sanction speaks for itself then the satisfaction of the sanctioning authority is apparent by reading the order. In the present case, the sanction order speaks for itself that the incumbent has to account for the assets disproportionate to his known source of income. That is contained in the sanction order itself. More so, as pointed out, the sanctioning authority has come in the witness box as witness No.40 and has deposed about his application of mind and after going through the reports of the Superintendent of Police, CBI and after discussing the matter with his legal department, he accorded sanction. It is not a case that the sanction is lacking in the present case. The view taken by the Additional Sessions Judge is not correct and the view taken by learned Single Judge of the High Court is justified."
53 In this regard, Hon'ble Supreme Court in Superintendent of police (CBI) Vs. Deepak Chaudhary - 1995 SCC (Crl.) 1095 has held as follows:
''We find force in the contention. The grant of C C No.88/2000 34/96 sanction is only an administrative function, though it is true that the accused may be saddled with the liability to be prosecuted in a court of law. What is material at that time is that the necessary facts collected during investigation constituting the offence have to be placed before the sanctioning authority and it has to consider the material. Primafacie, the authority is required to reach the satisfaction that the relevant facts would constitute the offence and then either grant or refused to grant sanction. The grant of sanction, therefore, being administrative act the need to prove an opportunity of hearing to the accused before according sanction does not arise. The High Court, therefore, was clearly in error in holding that the order of sanction is vitiated by violation of the principles of natural justice.''
54 Hon'ble Supreme Court in Kottha Perumal Vs. State Tr. Inspector of Police, Vigilance and Anti Corruption, AIR 2011 Supreme Court 356 has held as follows:
"Prevention of Corruption Act (49 of 1988) - Sanction to prosecute - Legality Examination of material facts by sanctioning authority - Sanction order specifically stating that statement of witnesses have been duly examined - Other materials such as copy of FIR as well as other official documents such as different mahazars were carefully examined Upon examination of statements of witnesses as also material on record, sanctioning authority has duly recorded its satisfaction that appellant should be prosecuted - Sanction order is legal."
55 In State of Haryana V. V K Sehgal, 1999 Crl. L.J. 4593 Hon'ble Supreme Court has held as follows: C C No.88/2000 35/96
"Prevention of Corruption Act (49 of 1988), S. 19 (3) (a), S. 27, S.30 - Prevention of Corruption act (2 of 1947), S.6 - Criminal P.C. (2 of 1974), S. 465 Absence of sanction or invalid sanction to prosecute public servant - cannot be a ground to set aside conviction and sentence for offence under Act of 1947 - Scope of appellate and revisional power of Court Briddled."
56 I have also gone through the authorities relied upon by Ld Defence counsel in support of his arguments . There is no dispute with the proposition of law laid down in these authorities . However, every case has its own facts and circumstances,ratio of law laid down in a particular authority is to be applied according to the peculiar facts and circumstances, of that particular case. As discussed above the facts and circumstances of the case in hand are different then that of the facts and circumstances of these authorities hence ratio of law laid down in these authorities is not applicable to the facts and circumstances of the case in hand.
57 In view of above discussion, this Court is of opinion that prosecution has proved a valid sanction for the prosecution of accused P K Gupta in this case. Whether 1178 KVPs in question were stolen . C C No.88/2000 36/96 58 Kisan Vikas Patra bearing series nos 46 CC 841301 to 400, 46 CC 861101 to 300, 46 CC875201 to 300, 46 CC875601 to 700, 46 CC 878483 to 500, in all 598, in the name of Rakesh Sharma and series No.46 CC861501 to 800, 46 CC861801 to 900, 46 CC875301 to 400 and 46 CC875801 to 900, in all 600, in the name of Rajesh Grover were deposited in OBC Safdarjung Enclave Branch as security for obtaining loan in question.
59 According to prosecution KVPs of 46CC series had been stolen at Patna from Railway Wagon No.CR64037 during the transit from Nasik to Hawara. In this regard relevant portion of PW 16 Laxman Dutt, retired Inspector RPF is as under:
" During the joint checking in the presence of Inspector CIB/RPF/Calcutta, Inspector CIB Danapur myself Inspector RPF Patna and SI RPF Patna Sh V K Singh, it was found that some packages found scattered inside the wagon floor. All the packages of said wagon No CR64037 were unloaded and counted. During unloading 44 packages were found against 47 packages as per loading guidance dated 25.12.97 and three packages were found short. In addition to these three packages, two packages were found totally empty. In this connection the DD message was prepared by Patna Parcel official to all concerned. After that I C C No.88/2000 37/96 made preliminary inquiry regarding the theft. During my inquiry it was ascertain that the subject wagon during its establishing at Patna Railway yard the seals of the wagon were tempered with on several dates between 8.1.98 to 19.2.98 which celarly indicated that the theft of NSCs KVPS, etc took place in the said yard from the above wagon. IPF/CIB/HQ Calcutta produced and handed over to me one seizure list and two blank NSC which were recovered by them on 19.2.98 in Patna Yard. In this connection I submitted a written complaint to officer in charge Govt Railway Police Patna Junction on 23.2.98. I have seen the report dated 23.2.98 in original. This report has been in my writing and under my signatures. ( Original report has been brought by Sh A K Singh Section office Rly Board N Delhi Original seen and returned ) I have seen the photocopy D72 ) of the report ( FIR) containing two sheets which is the correct copy of the original, the same is ex PW16/A which is in my hand and bears my signatures alongwith the FIR I also given the copy of DDM dated 20.2.98 and two numbers of the copy of NSCs. I have mentioned detail regarding theft in my FIR Ex PW4/A. On the basis of my FIR, the Government Railway Police, Patna register case No.29/98 dated 24.2.98"
60 FIR 29/98 was registered with regard to the theft of KVP in question vide complaint Ex PW16/A . In this regard PW 21Sh. Girindra Mohan Kumar has stated as follows:
"In the month of September, 1997 I was posted and functioning as Inspector cum Officer Incharge, GRP Patna, Railway Station Patna. On the complaint of Sh. Laxman Dixit, Inspector, RPF Post, Patna Junction, a C C No.88/2000 38/96 case vide FIR No. 29/98 was registered on 24.2.98 in GPS P S Patna Junction U/s 468/409/120 B IPC against unknown persons. Wagon No.64037 was opened by RPF and 44 packets were found against 47. This is the complaint dt. 23.2.98 of Laxman Dixit. The same is already Ex PW16/A. On the basis of which case FIR No. 29/98 was registered. I had partly investigated case FIR No.29/98."
61 It is argued on behalf of accused that above FIR was not registered U/S 379 of IPC for the theft of KVPs. In cross examination PW21 Girindra Mohan Kumar has deposed as follows:
"I had mentioned section 468,409/120 B IPC against unknown persons being the investigating officer. As I was having doubts with regard to committing forgery hence I had mentioned Section 468 IPC. I had not mentioned any section of theft in FIR as per the suggestion of senior officers. I had consulted my senior officers before registering the FIR. However, I had not disclosed this fact to CBI in my statement U/s 161 Cr PC. This case was transferred to CBI on the direction of Hon'ble High Court. I had filed part charge sheet in the Court of CGM Patna on the basis of recovery of NSCs."
62 From the allegations made in the complaint Ex PW16/A and from the contents of FIR No.29/98 P S Patna Junction, commission of the offence of theft is apparent, it hardly matters if section 379 IPC is particularly mentioned or C C No.88/2000 39/96 not in the FIR.
63 PW6 in his cross examination has deposed that a circular was issued by the Head Post office that KVPs of 46CC had been stolen, which is as under:
" A circular had been issued by the Head Post Office that KVP of 46 CC Series had been stolen."
64 This witness has specifically deposed that KVPs of 46 CC had never been issued to Armapur Post Office, Kanpur , UP. Relevant portion of his statement in this regard is as under:
"...... The Kishan Vikas Patra certificate issued to the investor are entered in a stock register maintained in the post office. The stock register of Armapur Post office Kanpur was summoned to the office of the Senior Supdt Post Offices, Kanpur, UP , when the investigations in these cases started .The register remained in my custody, till it was seized by the CBI. I have seen copy of three pages of the register duly attested by Senior Supdt. of Post Offices, Kanpur. This is attested by Shri Subhash Chand, the then Sr Superintendent of Post office, Kanpur. Same is Ex PW6/A. The Kishan Vikas Patra of the denomination of Rs.10,000/ in the series 20 CC which were issued by the said post office have been entered in Ex PW6/A. As per this register, no Kisan Vikas Patra of series 46 CC were issued to the post office nor such KisanVikas Patra were supplied to the post office or issued to investor. Every post office is supplied 100 certification at one time.C C No.88/2000 40/96
When these 100 are issued by the post office. It has to send a requisition for more certificates and 100 more certificates are then supplied to the said post office. Thus it is not possible for any post office to issue more than 100 certificates in one day.
I have seen the Kisan Vikas Patra collectively mark Ex PW6/B ( all the 1198 certificates seized in this case, kept in 12 bundle). There are not the genuine certificates of Kisan Vikas Patra. The stamp of the post office affixed on these Patra is different from the stamp which was being used by the said post office.
.......... "I have been shown the Kisan Vikas Patra MarkedEx PW6/B. They do not contain the complete address of the person, to whom have been issued. It shows that they are not genuine certificate because as per the directions issued in the post office saving bank manual, the complete address of the investor have to be mentioned on Kisan Vikas Patra under Rule 12(2)(b).".....
65 In his cross examination this witness has deposed as follows:
" .......There is a office memorandum providing that only 100 KVP will be supplied to a sub post office on one requisition in a day. I have not brought the same memo today. It is wrong to suggest that there is no such memo. I had never been posted in Armapur Post office. The specimen of Armapur post office were available in the office of Sr Supdt of Post Office , therefore I can that these KVPs does not bear the stamps of that post office. Even the spelling of Armapur is wrongly written in the stamps on Ex PW6/B. The correct spelling of Armapur in the original stamp is ARMAPORE.
I had worked with Shri Subhash Chand, Sr Supdt from February 1999 till 2000. I have brought the post office Saving Bank Manual. I worked with Mr MB C C No.88/2000 41/96 Bajpai from December, 1998 till January 1999. It is wrong to suggest that I was not posted as office Asstt in the Office of Sr Supdt Post office, Kanpur from 1998 to 2002. It is wrong to suggest that Ex PW6/A to Ex PW6/G were fabricated letter at the instance of CBI. It is wrong to suggest that I am deposing falsely."
66 KVPs of 46 CC series were not issued to Armapur sub post Office, Kanpur . KVPs in question do not have the stamp of Armapur post Office, Kanpur and date stamp. Only the name of purchaser "Rakesh Kumar" or "Rajesh" is mentioned without address of the purchaser. 67 In this regard PW 9 Natha Parkash Hans has deposed as follows:
" During 1998 I was posted as Sub Post Master HS GII at Armapur Post Office Kanpur. Before that I was working as a Supervisor in the same post office. S N Panday was the sub post Mastezr of Armapur while I was working as Supervisor . I took over as Sub Post Master from him. Sh Girija Shankar Dubey was the Supervisor when I became the Sub Post Master .The KVPs were issued by the supervisor . No one else was authorised to issue the same. After seeing Ex PS6/A copy of the stock register of Armapur post office, I can say that the KVP collectively marked as PW6/B have not been issued from our post office. The rubber stamp and round seal on these KVPs are not of Armapur Post office. Full address of the purchaser is not written on the KVPs."
68 In this regard PW 8 has deposed as follows: C C No.88/2000 42/96
" During 1995 I was working as Sub Postmaster at Armapur Post office in the grade of HS GII. S N Panday may have come to that post office after my tenure. Mr B B Singh and Mr Param Lal were also posted in the Armapur post office during my tenure. Sone Lal has come to that post office after Mr Param Lal has left. I have seen the Kisan Vikas Patra collectively marked Ex PW6/B.They have not been issued from Armpaur post office. They do not bear the signatures of the supervisor of Armapur Post office. The stamp affixed on these Kisan Vikas Patra bearing series nos 46 CC 841301 to 400, 46 CC 861101 to 300, 46 CC875201 to 300, 46 CC875601 to 700, 46 CC 878483 to 500 in the name of Rakesh Sharma and 46 CC861501 to 800, 46 CC861801 to 900, 46 CC875301 to 400 and 46 CC875801 to 900 in the name of Rajesh Grover collectively marked as Ex PW6/B. The round seal is also not of our post office. I have seen Ex PW6/A , the copy of the stock register of our post office .The Kisan Vikas Patra of series 46 CC were not available in Armapur Post Office. They had not been issued to our post office."
69 In this regard PW10 Param Lal has deposed as follows:
" From 1994 to 1996 I was posted as Supervisor in Armapur Post office. I was in HSGII grade. Sh Sheo Pal Singh was the post master. I was incharge of the issue and transfer of KVP and maintainance of record with respect to KVPs. I have seen KVPs in the name of Rakesh Sharma and Rajesh Grover collectively marked as Ex PW6/B. These have not been issued from Armapur post office. The round seal is different from the one C C No.88/2000 43/96 which was being used at Armapur Post Office . The registration number and nomination numbers shown in the KVPs are different from the nos which were being issued in that post office at that time . The date stamp on these KVPs is not a Armapur post office. Similarly the rubber stamp of post office Armapur affixed on KVPs is not of our post office. These KVPs show that Sub Post master in LSG grade and the supervisor in HSGII grade which is not possible because the Sub Post Master is Senior to the supervisor and has to be either in the same grade or higher grade. A person in LSG grade is not authorized to issue KVPs. I was the supervisor of Armapur post office in July 1995 and these KVPs do not bear my Signatures . Full address of the buyer is written on the KVPs. In Armapur Post Office he used to write the full address as per requirement on the KVP. I have seen the copy of stock register Ex PW6/A. It clearly shows that the series of KVP which were being issued from our post office at that time was 20 CC series. The stock register has my signatures in the column Mark A against each entry. KVPs Ex PW6/B are of series 46 CC which were not issued from our post office."
70 From the above discussion it is proved beyond reasonable doubt that 1198 Kisan Vikas Patra bearing series nos 46 CC 841301 to 400, 46 CC 861101 to 300, 46 CC875201 to 300, 46 CC875601 to 700, 46 CC 878483 to 500, in all 598, in the name of Rakesh Sharma and series No.46 CC861501 to 800, 46 CC861801 to 900, 46 CC875301 to 400 and 46 CC875801 to 900, in all 600, in the name of Rajesh C C No.88/2000 44/96 Grover which were deposited in OBC Safdarjung Enclave Branch as security for obtaining loans in question, were stolen KVPs and never been supplied to Sub Post Office, Armapur , Kanpur, U.P. Undisputedly the format of these KVPs are genuine but the name of "Rakesh Sharma" and "Rajesh Grover" have falsely been mentioned as purchaser of the respective KVPs dishonestly and malafidely, fake seal Post Office Armapur , Kanpur , Sub Post Master ( LSG) Armapur Kanpur and SUPERVISOR ( HSGII) Armapur Kanpur 208099 alongwith rounded seal of Armapur post office having the date were affixed in order to give a coloration of genuineness to these KVPs which in itself amounts forgery. ROLE OF EACH ACCUSED ACCORDING TO PROSECUTION AND EVIDENCE AGAINST HIM 71 Accused Rakesh Sharma had opened saving bank account no.8592 on 10.3.98 in OBC, Safdarjung Enclave Branch on the introduction of Rajiv Bhargava vide account opening form Ex PW1/A (D3). His photograph is also affixed on it.
72 On the same day accused Rajesh Grover had C C No.88/2000 45/96 opened saving bank account no.8591 in OBC, Safdarjung Enclave Branch on the introduction of Rajiv Bhargava vide account opening form Ex PW3/A (D4). His photograph is also affixed on it.
73 Both these accounts were allowed to be opened by SR Sorma.
74 On 30.3.98 accused Rakesh Sharma moved hand written application Ex PW3/B ( D9) for advancing loan against KVPs under his signatures which is as under :
" Date: 30.3.98 The Senior Manager, Oriental Bank of Commerce, Safdarjung Enclave, New Delhi. 29 D/Sir Sub. D/Loan Against KVP's I declare that the following KVP's are solely in my name and belongs to me. You are therefore requested to grand me loan against pledge of these KVP's.
KVP's No. Each of Rs. Amount
1 46 CC 875301 to 46 CC 875400 10,000/ 10,00,000/ Kanpur
2 46 CC 875801 to 46 CC 875900 10,000/ 10,00,000/ Kanpur
3 46 CC 861801 to 46 CC 861900 10,000/ 10,00,000/ Kanpur
4 46 CC 861701 to 46 CC 861800 10,000/ 10,00,000/ Kanpur
5 46 CC 861501 to 46 CC 861600 10,000/ 10,00,000/ Kanpur
6 46 CC 861601 to 46 CC 861700 10,000/ 10,00,000/ Kanpur
C C No.88/2000 46/96
Thanking you
Yours faithfully ,
Sd/
( Rakesh Sharma )
2074, SecCII
Vasant Kunj
New Delhi70"
75 On 30.3.98 accused Rajesh Grover moved hand
written application Ex PW3/K ( D10) for advancing loan against KVPs under his signatures which is as under :
" Date: 30.3.98 The Senior Manager, Oriental Bank of Commerce, Safdarjung Enclave, New Delhi. 29 D/Sir Sub. D/Loan Against KVP's I declare that the following KVP's are solely in my name and belongs to me. You are therefore requested to grand me loan against pledge of these KVP's.
KVP's No. Each of Rs. Amount 1 46 CC 875301 to 46 CC 875400 10,000/ 10,00,000/ Kanpur 2 46 CC 875801 to 46 CC 875900 10,000/ 10,00,000/ Kanpur 3 46 CC 861801 to 46 CC 861900 10,000/ 10,00,000/ Kanpur 4 46 CC 861701 to 46 CC 861800 10,000/ 10,00,000/ Kanpur 5 46 CC 861501 to 46 CC 861600 10,000/ 10,00,000/ Kanpur C C No.88/2000 47/96 6 46 CC 861601 to 46 CC 861700 10,000/ 10,00,000/ Kanpur Thanking you Yours faithfully , Sd/ ( Rajesh Kumar ) H No.11, Sec.14 Gurgaon." 76 PW11 Sh Dinesh Kr Bhaskar the then Senior
Manager / Branch Incharge OBC S.D Enclave has deposed that accused Rakesh Kumar and Rajesh Grover had given above referred applications to him alongwith the KVP's . He had handed over applications alongwith KVP's to the loan Manager P K Gupta for verification of KVP's and further action vide his letter Ex PW2/A dated 30.3.98 from post office Armapur, Kanpur. Relevant portion of his statement dated 2.9.2004, in this regard, is as under:
" I have seen the loan application Ex PW3/B, which was given to me by accused Rakesh Sharma alongwith the Kishan Vikas Patra mentioned in the application , which are collected as Ex PW6/B. I can identify the signatures of accused Rakesh Sharma at point A, on Ex PW3/B. I have seen the loan application of Rajesh Grover Ex PW3/K which was given to me by accused Rajesh C C No.88/2000 48/96 Grover I identify his signatures at pointX. He has signed his application as Rajesh Kumar and written his name as Rajesh Kumar below his signatures. He had also given KVP's collectively Exhibited as Ex PW6/B and details of which are mentioned in his application. I handed over the application alongwith KVPs to the Loan Manager Sh P K Gupta, for verification and further action. Vide my letter dated 30.3.98 Ex PW2/A I had directed P K Gupta to get the KVPs assigned in favour of the bank from Post office Armapur, Kanpur. The letter is signed by me at point X. I have seen Ex PW3/B, Ex PW3/C, Ex PW3/D, Ex PW3/E, Ex PW3/F to Ex PW3/G. They are signed by P K Gupta at pointX. I have also seen ex mPW3/H to 3/M . They are signed by Rakesh Sharma at point X."
77 From the above quoted statement of PW11, it is proved beyond reasonable doubt that both the accused Rakesh Sharma and Rajesh Grover had given their applications for loan dated 30.3.98, quoted above, alongwith the KVPs. Both the accused have specifically mentioned in their application that KVP's mentioned in their application are in their name and belonged to them. 78 Hand Writing Expert PW26 Mohinder Singh GEQD in his report Ex PW26/B1 opined that signatures at point Q3608 are of Rajesh Kumar in Ex PW3/K and body writing of this application at Point Q3609 is also in the C C No.88/2000 49/96 handwriting of accused Rajesh Kr Grover.
79 PW3 Sh S R Soorma, has also deposed that signatures on letter dated 30.3.98 Ex PW3/B are of accused Rakesh Sharma. Relevant portion of his statement in this regard is as under:
" I identify accused Rakesh Sharma, present in Court. The document i e letter dated 30.3.98 under the signatures of Rakesh Sharma is Ex PW3/B."
80 PW3 Sh S R Soorma, has also deposed that signatures on letter dated 30.3.98 Ex PW3/K are of accused Rajesh Grover. Relevant portion of his statement in this regard is as under:
" I have seen letter dated 30.3.98 addressed to Senior Manager, Oriental Bank of Commerce, Safdarjung Enclave by Rajesh Kumar the aforementioned account holder. I identify the signatures of account holder on this document at portion encircled X. The document is Ex PW3/K."
81 From the above discussion it proved beyond reasonable doubt that loan application Ex PW3/B alongwith the KVPs mentioned therein was handed over by accused Rakesh Sharma to Sh Dinesh Bhasker, the then Branch Manager OBC, Safdarjung Enclave branch on 30.3.98 . C C No.88/2000 50/96 82 Accused Rakesh Sharma in his statement U/S 313 Cr P C with regard to obtaining of loan from OBC Safdarjung Enclave Branch against KVPs has stated as follows:
" I am innocent. I did not approach the bank for loan. I was approached by Sh Upender Singh of M/S Davendra & Associates for arranging loan for me and my company M/S SOL Limited. Said Sh Upender Signh informed that he and his associates had good contacts with the banks and would arrange the loan after charging professional fee. All the processing etc for loan was done by them. I had no knowledge about the KVPs or any other security submitted by them with this Bank or other financial institutions. The said Devender & Associates and Upender Singh had also arranged other loans for my company from other financial institutions and private party . As soon as I came to know that there was some problem with the documents / securities submitted by the aforesaid person, I immediately return the entire loan with interest."
83 Accused Rajesh Grover in his statement U/S 313Cr P C has taken a stand that he had neither gone to bank nor moved any application for loan . He has been falsely implicated in this case being an employee of Rakesh Sharma. His statement U/S 313 Cr P C in this regard is as under:
" I am innocent and has been falsely implicated in this case because I was employee of Rakesh Sharma."C C No.88/2000 51/96
84 But from the above discussion it proved beyond reasonable doubt that loan application Ex PW3/K alongwith the KVPs mentioned therein was handed over by accused Rajesh Grover to Sh Dinesh Bhasker the then Branch Manager OBC, Safdarjung Enclave branch on 30.3.98 . 85 PW11 Branch Manager OBC, Safdarjung Enclave branch had directed accused P K Gupta Loan Manager , vide Ex PW2/A dated 30.3.98 to get the KVPs verified and to get the lien marked on the same from Armapur post office. Accused P K Gupta had gone to Kanpur on 30.3.98 alongwith Upender Kumar, Rajesh and Rakesh by Air . Upender and P K Gupta had come back to Delhi from Kanpur by Indian Airlines Flight in the evening of 30.3.98 itself. PW 4 Vinod Kumar Jain has proved the to and fro flight coupon. Flight coupons are Ex PW4/B and C. 86 Relevant portion of the statement of PW 11 in this regard is as under:
" I handed over the application alongwith KVPs to the Loan Manager Sh P K Gupta, for verification and further action. Vide my letter dated 30.3.98 Ex PW2/A I had directed P K Gupta to get the C C No.88/2000 52/96 KVPs assigned in favour of the bank from Post office Armapur, Kanpur. The letter is signed by me at point X. I have seen Ex PW3/B, Ex PW3/C, Ex PW3/D, Ex PW3/E, Ex PW3/F to Ex PW3/G. They are signed by P K Gupta at pointX. I have also seen ex mPW3/H to 3/M . They are signed by Rakesh Sharma at point X. I have also seen Ex PW3/N to Ex PW3/S. They are signed by accused P K Gupta at point X. Ex PW3/T to Ex PW3/Y are signed by accused Rajesh Grover at point X. P K Gupta was the over all in charge of loan section of the bank. His duty was to process and recommend the loan. P K Gupta had gone to Armapur for getting the lien mark on the KVPs.
On 31.3.98 P K Gupta told me in the morning that he got some KVPs marked and brought them back. The remaining KVPs were being brought by Rakesh Sharma and Rajesh Grover and Upender Singh and would come at about 12.00 Noon. P K Gupta brought 20 KVPs with lien mark on them. He had left the remaining 1178 KVPs with the accused. At about 12.00 noon or 12.30 PM Rakesh Sharma, Rajesh Grover and Upender Singh brought the remaining KVPs with lien marked on them. Ex PW6/B are the same KVPs which were brought by me. I then instructed P K Gupta to process the application and take necessary steps. P K Gupta recommended the sanction of loan for Rs.15 lacs in favour of Rakesh Sharma vide Ex PW3/C. I identify the signatures of P K Gupta on it at point X. I sanctioned the loan. My signatures are at point Y. Loaning documents were processed by P K Gupta . I identify the signatures of Rakesh Sharma at Point X on Ex PW3/D to Ex PW3/F. P K Gupta recommended a loan of Rs.15 lacs in favour of Rajesh Grover vide Ex PW3/L. It is signed by P K Gupta at point X. I signed at point Y. The loan documents were processed by P K Gupta vide C C No.88/2000 53/96 Ex PW3/M to Ex PW3/D. On 4.4.98 another loan was recommended by P K Gupta in favour of Rakesh Sharma vide Ex PW3/G. It bears the signatures of P K Gupta at point X and my signature at Point Y. The documents were processed by P K Gupta. Ex PW3/H to J are signed by Rakesh Sharma at point X. Another loan for Rs.27 lacs was recommended by P K Gupta on 4.4.98 in favour of Rajesh Grover vide Ex PW3/P . It is signed by P K Gupta at Point X by me at point Y. The documents were processed by P K Gupta . I have seen Ex PW3/Q to S it bears the signatures of Rajesh Grover at point X."
87 From the above quoted statement of PW 11 it is also proved beyond reasonable doubt that on 31.3.98 accused P K Gupta had recommended a loan of Rs.15 lacs each in favour of Rakesh Sharma and Rajesh Grover . The loan was sanctioned by PW 11 on the same date and loan amount was also disbursed on the same day. An amount of Rs.15 lacs each was credited in Saving Bank A/C No.8591 of Rajesh Kumar and in saving bank account of Rakesh Sharma. An amount of Rs.5,00,000/ was withdrawn by accused Rakesh himself vide cheque No.844601 on 31.3.98, an amount of Rs.5,00,000/ was paid to accused Upender on 31.3.98 by cheque No. 844602 . An amount of Rs.5,00,000/ was transferred vide cheque No. 844576 from the account No.8591 in the name of Rajesh Kumar to the account No.,8592 in the name of Rakesh Kumar C C No.88/2000 54/96 on 31.3.98 itself and remaining amount of Rs.10 lac was transferred vide cheque No.844577 to the account No.8592 on 3.4.98 , thus the total loan amount of Rs.15 lacs credited in the account No.8591 on 31.3.98 was transferred to the account No.8591 of Rakesh Kumar.
88 Rakesh Kumar on 3.4.98 had withdrawn himself an amount of Rs.5,00,000/ vide cheque No.844603 and transferred an amount of Rs.5,00,000/ to Upender Singh vide cheque No.844604 . He had also issued a cheque No.844605 in a sum of Rs.9,50,525/ in the name of OBC,Safdarjung Enclave Branch (yourself ) .
89 Another loan amount of Rs.26,85,000/ was credited in the account No.8592 of Rakesh Sharma on 4.4.98 and a loan amount of Rs.27 lacs were credited in the account No.8591 of Rajesh Kumar on 4.4.98. The entire amount of Rs. 27 lacs was transferred to account no.8592 in the name of Rakesh Kumar vide cheque No.844578 on 7.4.98. In this way the entire loan amount of Rs.42 lacs from the account of Rajesh Grover was transferred to the account of Rakesh Sharma.
90 A cheque No. 844613 ExPW26/A1 of Rs. 5 lac C C No.88/2000 55/96 dt. 11.4.98 was issued in favour of Rajesh Grover by accused Rakesh Sharma from his account No. 8592 which was encashed by accused Rajesh Grover under his signatures at point Q3606 and Q3607 on the back of the cheque. According to handwriting Expert Report Ex PW26/B1 signatures at point Q3606 and Q3607 are that of Rajesh Grover . Thus, it is proved that he had been paid an amount of Rs.5 lac by accused Rakesh Sharma.
91 From the above discussion it is proved beyond reasonable doubts that accused Rakesh Sharma and Rajesh Grover were hands in gloves with each other. Accused Rakesh Sharma had used accused Rajesh Grover as a tool to obtain the loan in question and actually used that amount himself. It again proves that both these accused were acting in connivance and conspiracy with each other to cheat the bank.
92 It is argued on behalf of accused Rakesh Sharma that as soon as he came to know that there was some problem with the securities (KVPs ). He had immediately returned the C C No.88/2000 56/96 entire loan amount with interest.
93 As quoted above in this judgment both the accused Rakesh Sharma and Rajesh Grover in their handwritten applications under their signatures Ex PW 3/B and Ex PW3/K have specifically mentioned that KVPs belong to them and are solely in their name.
94 A fact which is in the special knowledge of a person, is to be proved by him as per section 106 of Indian Evidence Act. Whether Rakesh Sharma and Rajesh Grover had purchased these KVPs genuinely were in their special knowledge. If they had purchased these KVPs from Armapur Sub Post Office, Kanpur genuinely it would have been in their knowledge that these KVPs were genuine. The fact that accused Rakesh Sharma had immediately deposited the loan amount obtained against the securities (KVPs ) in question also proves beyond reasonable doubts that he had not purchased these KVPs genuinely. These KVPs are on the judicial file till date Both the accused have not taken any step to get these KVPs encashed again proves that these KVPs were not genuine even according to their knowledge. The fact C C No.88/2000 57/96 that accused Rakesh Sharma had paid the entire amount obtained in his own name as well as in the name of Rajesh Grover alongwith interest also proves that actually it was he who had obtained the loan, against the securities of KVPs in question after arranging the same in his own name as well as in the name of Rajesh Grover .
95 Accused Rakesh Sharma and Rajesh Grover had deposited the KVPs in question in the bank as security for obtaining the loan. Bank was holding these KVPs in question on behalf of both these accused. These KVPs were seized by CBI from the possession of Oriental Bank of Commerce, Safdarjung Enclave Branch, New Delhi, but it does not mean that these KVPs were not seized from accused Rakesh Sharma and Rajesh Grover. In these circumstances there is no merit in the argument that as the KVPs were not seized from the possession of accused Rakesh Sharma and Rajesh Grover, hence they cannot be convicted for the offence punishable U/s 411 IPC for retaining the stolen KVPs.
96 It is argued on behalf of Accused Upender Kumar Singh that he is innocent, he had traveled to Lucknow C C No.88/2000 58/96 alongwith the bank officers, air ticket was handed over to him by his employer Rakesh Sharma as he had worked with M/s SOL Ltd. for a short time. He had no knowledge about the KVPs in question. He is innocent and had been falsely implicated in this case as he was working as Account Assistant on the salary basis with Rakesh Sharma who was MD of SOL India.
97 PW11 Sh. Dinesh Kumar Bhaskar, Branch Manager, OBC Safdarjung Enclave Branch has deposed that Rajesh Grover and Rakesh Sharma were introduced to him by Accused Upender Kumar Singh in March, 1998. They were brought to the bank by Accused Upender Kumar Singh as they wanted loan for purchasing some sick industry unit. Relevant portion of his statement in this regard is as under:
"From October, 1993 to June, 1998, I was working a Branch in charge, in Oriental Bank of Commerce , SD Enclave, New Delhi. I was one of the in charge of the branch including sanction of loans. Accused Rajesh Grover and Rakesh Sharma were introduced to me by Shri Upender Singh. Rakesh Sharma was the Mg. Director of M/s SOL Ltd. Rajesh Grover an employee of the firm. We had an account of Buland Exports. Upender Singh used to come to the bank regularly for conducting transactions of the said account. Upender Singh was working with M/s Devender & Associates.C C No.88/2000 59/96
Upender Singh had brought a deposit of Rs.1,30,00,000/ to ;our bank from Delhi Tourism Development Corporation. I know accused Upender Singh, present in court, Rakesh Sharma present and Rajesh Grover , present in court. (Accused have been correctly pointed out by the witness).
In the second week of March, 1998 Upender Singh had brought accused Rakesh Sharma and Rajesh Grover to the bank as they wanted to take loan. They wanted to take loan against Kisan Vikas Patra. In the first week of March, Upender told me that he had recently jointed M/s SOL Ltd. He introduced me to accused Rakesh Sharma and told me that Rakesh Sharma wanted to take loan. They told me that they had purchased some sick industries and wanted loan to revive those units. I directed Rakesh Sharma and Upender Singh to meet my Loan Manager Sh. P K Gupta. Upender had also assured me that they had contacts and they would get deposit of Rs. 2 crores for us, i.e. our branch. I can identify P K Gupta, present in court."
98 This witness has been cross examined on behalf of accused Upender Singh. His entire cross examination is as under:
"Whether we sanction a big amount of loan or a small amount we complete all the procedural formalities. In this particular case I had visited the office of accused Rakesh Sharma and residence of Rajeh Grover. Since the nature of security was KVPs no other procedural formalities was required. The loan was sanctioned by me and was processed by accused P.K. Gupta. It is wrong to suggest that Upender Singh had no role in the sanction of the loan amount in this case. It was he who had C C No.88/2000 60/96 introduced the parties."
99 From the entire cross examination of this witness on behalf of accused Upender Singh, it is clear that nothing such has come out in his cross examination to disbelieve the above quoted version given by him. Not even a single question has been put to him that he had not introduced accused Rajesh Grover and Rakesh Sharma to PW11 for obtaining loan. This witness has specifically deposed in his cross examination that it was Upender Singh who had introduced the parties to him. This witness has also denied the suggestion that Upender Singh had no role in sanctioning the loan amount in this case, meaning thereby that Upender Singh had played a role for getting the loan sanctioned in favour of accused Rakesh Sharma and Rajesh Grover.
100 There is no merit in the argument on behalf of accused Upender Kumar Singh that he had not received any amount out of the loan amount. Accused Rakesh Sharma had issued cheque no. 8846604 dt. 3.4.98 in sum of Rs.5,00,00/ in favour of Upender Singh which is Ex PW 3/X1 which was encashed by Upender Singh vide his signatures at point Q3595 C C No.88/2000 61/96 on the back of this cheque. Cheque no. 8846606 dt. 4.4.98 in sum of Rs.2,50,00/ in favour of Upender Singh which is Ex PW 3/X2 which was encashed by Upender Singh vide his signatures at point Q3596 and 3597 on the back of this cheque. Cheque no. 8846609 dt. 6.4.98 in sum of Rs.1,00,00/ in favour of Upender Singh which is Ex PW 3/X3 which was encashed by Upender Singh vide his signatures at point Q3598 & 3599 on the back of this cheque. Cheque no. 8846612 dt. 7.4.98 in sum of Rs.3,00,00/ in favour of Upender Singh which is Ex PW 3/X4 which was encashed by Upender Singh vide his signatures at point Q3600 & 3601 on the back of this cheque. Cheque no. 8846614 dt. 12.4.98 in sum of Rs.5,00,00/ in favour of Upender Singh which is Ex PW 3/X5 which was encashed by Upender Singh vide his signatures at point Q3602 & 3603 on the back of this cheque. Cheque no. 8846615 dt. 13.4.98 in sum of Rs.5,00,00/ in favour of Upender Singh which is Ex PW 3/X6 which was encashed by Upender Singh vide his signatures at point Q3604 & 3605 on the back of this cheque.
101 PW26 Mahinder Singh, GEQD who has examined the questioned writing/signatures of accused with their C C No.88/2000 62/96 admitted or specimen handwriting/signatures has opined in his report Ex PW26/B1 that signatures at point Q 3595 to Q3605 are of accused Upender Kumar Singh.
102 Payment of all the above referred cheques issued by accused Rakesh Sharma from account No. 8592 in favour of Upender Singh were received in cash by accused Upender Singh. Accused has not given any explanation as to how and what for cheques for such a huge amount were issued in his favour and how he had utilised such a huge amount after receiving the same in cash.
103 PW5 Rajinder Kapoor, who was a Company Secretary, has deposed that Accused Upender Kumar Singh was working with D Kaggarwal who had met him with regard to change of his job hence he referred him to Rakesh Sharma. When he visited Rakesh Sharma he met Accused Upender Kumar Singh in his office and came to know that he had joined service of Rakesh Sharma . This witness has specifically deposed that his company mobilised fixed deposit of about Rs.2 crores in favour of M/s SOL Ltd. through brokers and investors. Thus, from his statement it is proved that Accused Upender Kumar Singh was dealing in C C No.88/2000 63/96 arranging the funds and had joined service of Rakesh Sharma at the relevant time.
104 From the above discussion it is also proved that Accused Upender Kumar Singh had accompanied accused P K Gupta Loan Manager, Oriental Bank of Commerce , Safdarjung Enclave to Armapur Sub post Office, Kanpur on 30.3.98 and came back alongwith him in the evening of 30.3.98 itself after getting mark lien of 20 KVPs in question only. From the entire discussion it is apparent that he was also in connivance and collusion with accused Rakesh Sharma for obtaining the loan in question from Oriental Bank of Commerce , Safdarjung Enclave Branch against the securities of 1198 KVPs in question.
105 It is argued on behalf of accused P K Gupta that he was working as Loan Manager in Oriental Bank of Commerce , Safdarjung Enclave branch, New Delhi. His Branch Manager had directed him to get the lien assigned on KVPs in question from Armapur Sub Post Office, Kanpur on 30.3.98. His tour was so hurriedly arranged by him as to go to Armapur on 30.3.98 itself and to come in the evening of 30.3.98 itself. Air tickets were also so arranged. In these C C No.88/2000 64/96 circumstances he had no option but to follow the instruction of his senior and to come back in the evening of 30.3.98 itself. It was again important to him to come back in the evening of 30.3.98 because 31.3.98 was the last working day of the Financial Year.
106 Referring Ex PW 2/A Ld. Defence Counsel argued that PW11 had directed him to go to Aarmapur for getting the lien marked of 1198 KVPs . It is argued that in these circumstances it was not his job to carry out any verification of the genuineness of KVPs in question. It is argued that he had reached late i.e. about 5.15 PM at Armapur post Office, Kanpur, being in hurry to return, he got marked lien on 20 KVPs i.e. 10 each in the name of Rakesh Sharma and Rajesh Grover and left the remaining KVPs with the Post Office Authority to be brought back by accused Rakesh Sharma , Rajesh Grover and Upender Kumar Singh on the next day.
107 Accused P K Gutpa had gone to Armapur for verification of KVPs and for getting lien marked on the KVPs in favour of the bank which is clear from the statement of PW11.Relevant portion of his statement in this regard is as C C No.88/2000 65/96 under:
" I handed over the applications alongwith the KVPs to the Loan Manager Sh P K Gupta, for verification and further action."
108 There is no merit in the arguments on behalf of accused P K Gupta that he was not directed to verify the genuineness of KVPs. In view of letter dt 16.4.98 Ex PW11/A written by him Senior Supdt Post Offices wherein he has specifically mentioned that he had submitted NC41 and Bank's letter for verification and assignment of KVPs. Relevant portion of the letter Ex PW11/A in this regard is as under:
".... I have also submitted NC41 & Bank letter for verification & assignment of the above KVPs from Armapur Post Office."
109 Even otherwise it does not appeal to common sense that he was not asked to verify the genuineness but only asked to get the assignment of KVPS in favour of bank. The object of assignment of KVPs in favour of bank was to protect the interest of bank . Would it be any use of getting lien marked on the bogus KVPs in favour of bank .
110 There is no merit in the argument that his tour was C C No.88/2000 66/96 arranged by his Senior Manager in a such a manner that he was not having sufficient time to stay at Armapur for getting the lien marked on the KVPs himself because he was a Senior Officer being No. 2 in the Branch he should have asked his branch Manager sufficient time for verification of genuinity of KVPs and for getting lien marked on the same, had he not involved in this conspiracy. Moreover he has not given any reasonable/ acceptable explanation with regard to his not opposing of such hurriedly arranged tour by his Senior Manager for such an important job.
111 Branch Manager had specifically directed accused PK Gupta for the verification of KVPs and getting lien marked on the same , therefore, there is no merit in the argument on behalf of accused P K Gupta that according to the version given in cross examination of PW11 there is no lapse in handing over the KVPs in post office / representative of Rakesh Sharma as even a party can get the lien marked himself, otherwise what would be the purpose of sending P K Gupta personally to Armapur Post Office . Will it be expected from a party who himself had deposited bogus KVPs as security that it would rightly get the lien marked in favour C C No.88/2000 67/96 of the bank from the post office.
112 The fraud was neither discovered by PW11 Dinesh Kumar Bhasker the then Branch Manager nor by accused P K Gupta, nor they made any concrete effort to recover the amount. This fraud was detected because PW 17 Laxmi Kant Chanana became suspicious from the conduct of S N Panday and his intimacy with Ashwani Dhingra and D B Singh therefore he alongwith PW 19 Subhash Chander Sethi and Mr Banga had gone to OBC, Safdarjung Branch for inquiry.
113 P K Gupta in his letter Ex PW11/A has specifically mentioned in this regard that he had gone to post office Armapur between 5.00 pm to 5.15 pm alongwith Upender Kumar, Ashwani Dhingra and D B Singh. Relevant portion of letter Ex PW11/A written by accused P K Gupta is as under:
The Sr Supdt of Post Offices, Kanpur City Division, Kanpur.
Dear Sir, Reg: Assignment of KVPs in favour of the C C No.88/2000 68/96 bank issued by post office Armapur, Kanpur.
I the undersigned came to the above post office for assignment of KVPs issued by Armapur Post Office, on 30.3.98 between 5 pm to 5.15 pm alongwith Sh Upender Kumar accompanied by one Sh Dhingra of Lucknow in Maruti Van...
.... I have also submitted NC41 & Bank letter for verification & assignment of the above KVPs from Armapur Post Office. The Post Master, Mr S N Panday took out the Almirah binded book in which applications for KVPs were duly binded . After verifying the Regd Nos, printed Nos of the KVPs, Amount & signature from KVPS application with NC41 and bank's letter . In my presence accompanied Mr Upender Kumar and Mr Singh and Mr Dhingra, Mr Panday put the rubber stamp of the post office on NC41 , Banks letter and also put his signature on NC41, Bank letter & also put his signatures on NC41 , Banks letter and also on 20 KVPs in my presence with red ink ball pen. Due to shortage of the time the remaining KVPs only were left with Mr Panday for his signatures and stamp for assignment which were delivered to the bank on 31.3.98 through Mr Upender Kumar..........
....... The Staff of the Post office informed that Mr Panday has gone outside and shall come on 3pm. At 3 pm your goodself alongwith Mr Verma asked the entire proceedings and facts of the date of assignment i e 30th March 98. In our presence Mr Panday has denied that he has not assigned the C C No.88/2000 69/96 KVPs in favour of the bank even refused to recognize the undersigned which is totally incorrect and false. The under signed also noticed that Red ink Bell pen was missing from his Pen stand. On enquiry he could not given a suitable reply despite our repeated requests. In view of the denial and reluctance to give statement by Mr Panday in our presence , we would request you to kindly put immediate inquiry with matter so that person behind this scandal can be caught immediately. Kindly acknowledge the receipt of the letter"
Yours faithfully sd/ Sr Manager ( P K Gupta ) B/O Safdarjung Enclave.
Encl: NC 41 and Bank's letter for assignment in 12 set "
114 Had Mr P K Gupta not involved in the conspiracy he would have also smell the fraud because of the suspicious conduct of S N Panday, D B Singh and Dhingra of getting the lien marked at 5.15pm .
115 On the basis of above +referred letter Ex PW11/A of accused P K Gupta the Senior Supdet Post offices, Kanpur hold an inquiry report which is Ex PW6/D . Even in this report activities of P K Gupta found doubtful . Relevant portion of inquiry report Ex PW6/D in this regard is as under: C C No.88/2000 70/96
" The activities of the bank officer Sh P K Gupta Manager on 30.3.98 are also doubtful unless there is no vested interest why he attended the Armpur PO in the evening and after close hours of the Post Office. Why he got only few KVPs verified and left others with Mr Pandey. Why did he not get it verify through post or the mode. Had he attended the PO during day ( working hours) the Department would have been saved favour avoidable inquiry etc and the bank took have been saved from grant of huge loan on stolen KVPs when Mr R K Gupta was asked to lodged FIR with the local police, he answered that he would submit his report to his head Quarter."
116 Accused had asked for 15 days times themselves to deposit the entire money and they had deposited the entire money alongwith interest within 13/14 days .The relevant portion of PW 11 is as under:
"Three officials from PNB from some branch in Green Park and one in East Delhi had come to me to see the KVPs on the basis of which loan have been granted by our Branch . The names of the said officials and Mr Sethi ,Mr Banga and Mr Chanana. I assured them the KVPs mentioned above which are Ex PW6/B collectively to these officers . The officers then left the Bank.
In the evening a telephone was received from Mr Chanana that the genuineness of KVP had been verified from Kanpur and these have been found to be bogus. I alongwith Mr P K Gupta left for Kanpur by the night train for Kanpur and we also gave information in the this regard to our higher officers.We had carried the C C No.88/2000 71/96 above referred KVPs with us. First of all, we went to the Head post office and then we went to Armapur Post Office where from the KVPs were purported to be issue. I made enquiries from the post Master if the KVPs mentioned above had been issued by his post office. On seeing the KVPs, he informed us that the same had not been issued by their post office. A complaint was written by P K Gupta and the said complaint was to the Senior superintendent post office Kanpur City Division. The said complaint is Ex PW11/A . I identifies the signatures of Mr P K Gupta, thereon as it was written and signed by him in my presence, under my dictation . The complaint run into three sheets. We contacted accused Rakesh Sharma and Rajesh Grover in their office on the next day after returned of Kanpur. We brought them to our Bank and told them about the KVPs being bogus. They asked us to return the KVPs and assured us that they would repay the amount loan immediately, These accused persons asked for 15 days time. The entire amount alongwith interest was deposited by them within 13/14 days. We informed our higher authorities about the same, on instruction from higher authorities we kept KVPs in our safe custody."
117 There is charge against Accused Ashwani Dhingra and Dal Bhadhur Singh that they assisted accused Rakesh Sharma, Rajesh Grover and coconspirator Surender Narain pandey (since dead) by facilitating false verification and lien marking on the said forged KVPs produced by Rakesh Sharma and Rajesh Grover for the purpose of taking C C No.88/2000 72/96 loan to the extent of Rs.83.85 lacs.
118 For substantiating the allegations the evidence of PW17Laxmi Kant Chanana is referred , where he has stated that on 13.4.98 he proceeded to Kanpur by air alongwith accused Rajesh Grover . Accused Rajesh Grover took PW17 straightway in the Hotel Meghdoot. Accused Rajesh Grover, from Meghdoot Hotel, telephoned to somebody and thereafter Mr. Ashwani Dhingra and D B Singh came in hotel room with whom PW17 reached Armapur post Office, Kanpur at about 5 PM. Mr. S N Pandey (coconspirator), in Armapur post Office, Kanpur showed PW17 the file pertaining to the applications for issue of KVPs. In that file PW17 found the applications of Rakesh Sharma and Rajesh Grover . While he was perusing the said file produced by Pandey , PW17 found the request relating to the bank of OBC Safdarjung Enclave , New Delhi Branch also in which the name of Rakesh Sharma and Rajesh Grover was also appearing. PW17 enquired from Rakesh Sharma and Rajesh Grover in respect of securing loan from OBC Safdarjung Enclave against the KVPs , both the accused persons namely Rakesh Sharma and Rajesh Grover replied in affirmative and tried to convince PW17 taking the C C No.88/2000 73/96 support of technical points for not raising the entire loan from one bank.
119 While PW17 was perusing the said files from which 2000 leaves of KVPs were presented for marking lien to Mr. Pandey (coconspirator) one of the accused (from Rajesh Grover, Rakesh Sharma , Ashwani Dhingra and D B Singh) requested PW17 that it will take a lot of time to mark lien on these KVPs at Armapur post Office, Kanpur and they had good relations with Mr. Pandey and can request him to come to hotel where he will put his signatures and stamp for marking the lien in favour of bank. Having convinced with the logic of above said accused persons PW17 returned to Meghdoot Hotel where lien marking was carried on by Mr. Pandey, the co conspirator in presence of above said accused persons. 120 Relevant portion of PW 17 in this regard is as under:
"I was posted as Branch Manager, PNB, Kaushambi Branch, Ghaziabad from 1997 till October, 2000. I was managing all business of the branch as a Branch Manager. One of my colleague Chief Manager sh. B L Verma introduced me with Sh. Rakesh Sharma on 12.4.98. I do not remember the day on which I was introduced but bank was opened. Mr. Rajesh Grover met me at Airport, Delhi next day introduced by Mr. Rakesh C C No.88/2000 74/96 Sharma. Mr. Rakesh Sharma met me for advance against KVPs issued from Armapur Post Office, Kanpur. When Mr. Rakesh Sharma requested for advance against KVPs I took permission from my Regional Office, Meerut over telephone to get the lien mark on KVPS from the concerned post office. The KVPS were in the name of Rakesh Sharma and Rajesh Grover. Most of the KVPS were in the name of Rakesh Sharma and rest were in the name of Rajesh Grover. Rakesh Sharma requested for advance for the purpose of business. I considered it a safe advance and beneficial to bank in terms of gaining interest out of said advance, I accepted the offer. On 13.4.98 I proceeded to Kanpur by Air alongwith Mr. Rajesh Grover. After reaching Lucknow Mr. Grover hired a taxi for Kanpur. On reaching Kanpur, Mr. Rajesh Grover took me straight way in the Hotel Meghdoot. Mr. Rajesh Grover telephoned to somebody from Meghdoot Hotel. Mr. Ashwani Dhingra and D B Singh came in the hotel room. where they introduced me and met me. I identify accused Rakesh Sharma, Rajesh Grover, Ashwani Dhingra and D B Singh present in court today. (Correctly identified) Near about 1 PM we reached Kanpur and near about 4.30 we started to Armapur Post Office by taxi. When I visited Armaur Post office, all the four accused were present with me. Near about 5 PM we reached Armapur Post Office. In the way the rubber stamp for lien marking was taken by one of the accused, however, earlier the matter was given by me for making the stamp. At Armapur Post Office Mr. S N Pandey Sub Post Master, met me on the introduction of the accused persons where I introduced myself and called him the purpose for visiting the post office. The purpose was for getting the lien mark on the KVPs issued in the name of Rakesh Sharma and C C No.88/2000 75/96 Rajesh Grover in favour of bank for advancing the loan. Mr. S N Pandy showed me the file pertaining to the applications for issue of KVPs. I checked the file and I found that the applications of Rakesh Sharma and Rajesh Grover were also there. I presented my letter from the bank for marking the lien on KVPS. The similar type of request was also available on the record of other bank i.e OBC Safdarjung Enclave and PNB Malviya Nagar Branch in the name of Rakesh Sharma and Rajesh Grover. I asked the accused Rakesh Sharma and Rajesh Grover whether they had secured loan from these banks also against the KVPS. They replied in affirmative. I again asked why they have not raised the entire loan from one bank. They replied that it is because of their business technical points. Near abouts 2000 leaves of KVP were presented for marking lien to Sub Post Master Sh. S N Pandey. One of the accused requested me that it will take a lot of time to mark lien on these KVPS at Post Office and they had good relation with Mr. Pandey and can request him to come to the hotel where he will put his signatures and stamp for marking the lien in favour of bank on KVPS. After that I alongwith two accused persons came back to Hotel and other two remained in the post office to came latter to Hotel alongwith Mr. Pandey. The other two accused persons came to the hotel with Mr. Pandey. In the hotel room Mr. S N Pandey marked the lien on the KVPS in favour of bank. Inspite of my request to reach Armapur Post Office at the earliest we were delayed due to lunch and making up of rubber stamp. The lien marking was done on 13.4.98. Next morning I alongwith Rajesh Grover came to Lucknow Air Port by a taxi and from Lucknow to Delhi by Airport. After reaching Delhi I asked Mr. Rajesh Grover to come on C C No.88/2000 76/96 next day. During the entire visit to the Armapur Post Office I got suspicious regarding the genuineness of KVPs. I was suspicious because of the late arrival at Armapur Post Office and getting Mr. SN Pandy Sub Post Master alone in the Post Office. I was again suspicious after finding letters of other two banks for raising similar type of loan by the same persons. After reaching home, I started thinking on the entire scenario and contacted one of my Senior Colleague Mr. S P Banga Senior Manager in my bank and discussed the entire episode with him at my residence. I was having the list of KVPs in the name of Rakesh Sharma and Rajesh Grover to be pledged with the bank alongwith date of their issue. Suddenly I started checking days of the dates of issue of KVPS and found that one of the day is Sunday. That confirmed my doubt about the genuineness of the KVPs. Next day I alongwith Mr. Banga went to Chief Post Master Office, near Jhandewallan Extension, Delhi for verifications of the KVPs. They took the list of KVPs from us and told us to come in the evening because they will confirm it from Kanpur Post Office. After that I alongwith Mr. Banga visited PNB Malviya Nagar Branch."
121 PW17 became suspicious after finding letters of other two bank for raising similar type of loans by the same persons. As such PW17 alongwith Mr. Banga and Mr. Sethi went to OBC, Safdarjung Enclave Branch and discussed the issue of granting loan against KVPs , then it was found that the KVPs bearing the series of 46 CC, which were not issued from Armapur post Office, Kanpur were used by accused Rakesh C C No.88/2000 77/96 Sharma and Rajesh Grover in OBC Safdarjung Enclave for taking the loan.
122 Further PW19 Sh.Subhash Chand Sethi has corroborated the version of PW17. His deposition to this effect is reproduced herein below:
"Sh. Dhingra and D B Singh remained present all alone they introduced me to the Sub Post Master of said post office. One S P Pandey again said S N Pandey was the Sub Post Master. They took me there at about 4.00 PM. We gave him a forwarding letter of the branch requesting him to mark lien on the enclosed KVPs given by the party, issued from that post office. He had marked lien on some of the KVPs however there was dim light there at that time hence Dhingra and D B Singh alongwith post master had taken me to Hotel Meghdoot in Kanpur. It was the day of either 25 or 26 of the March 1998. In the hotel lien was marked on all the remaining KVPs thereafter I alongwith my clerk left for Delhi."
123 PW25 Sh. Ram Kumar Dwivedi has stated that when D B Singh met him at the sad demise of Vijay Shanker Dixit, after expressing condolence he expressed his desire to encash some Kishan Vikas Patras to the extent of Rs.10 lacs or Rs.15 lacs from Kanpur Post Office on the basis of verification from the concerned office. PW25, as per his deposition, expressed his inability in the first instance but after 23 days C C No.88/2000 78/96 accused D B Singh again contacted him at Armapur post Office, Kanpur and met Mr. S N Pandey. PW25 has also stated that accused D B Singh had offered him Rs.4,000 to 5,000/ to be paid to Sh. S N Pandey in case he would get the payment in cash from Armapur post Office. The said activities on the part of accused D B Singh shows that he was a man of dubious character and was having the knowledge that said KVPs were not issued from Armapur Sub post Office, and the same were intended to be used for taking loan. 124 It is forcefully argued on behalf of both these accused that neither PW17 nor PW 19 or PW25 have deposed about the KVPs involved in this case. It is submitted that there is not an iota of evidence on the judicial file with regard to marking of lien on KVPs attracting the involvement of both these accused, however if there is any, the same has nexus in the matter relating to marking of lien of KVPs having used in PNB, Khushambi branch, Ghaziabad and PNB Malviya Nagar Branch, Delhi.
125 The circumstantial evidence in respect of culpability of Ashwani Dhingra and D B Singh , specially with regard to their presence in Meghdoot Hotel, for marking C C No.88/2000 79/96 lien against KVPs even in the instance relating to Oriental Bank of Commerce, Safdarjung Enclave, New Delhi is confirmed by Ex PW11/A, where accused Pradeep Kumar Gupta while addressing to senior Superintendent of Post Offices, Kanpur City Division, Kanpur has written that on 30.3.98 between 5 PM to 5.15 PM he (accused Pradeep Kumar Gupta ) alongwith Sh. Accused Upender Kumar Singh accompanied by Sh. Dhingra and Mr. Singh of Lucknow visited Armapur post Office, Kanpur in a Maruti Van. 126 Ex PW11/A was written by accused P K Gupta on 16.4.98 in presence of PW11 describing the fact that he came to the Armapur post Office, Kanpur regarding verification and assignment of KVPs in favour of bank issued by Armapur post Office, Kanpur on 30.3.98 alongwith accused Upender Kumar Singh accompanied by one Sh. Dhingra of Lucknow in a Maruti Van. In Ex PW 11/A accused Pradeep Kumar Gupta has written as under:
"I the undersigned came to the above post office for assignment of KVPs issued by Armapur Post Office, on 30.3.98 between 5 pm to 5.15 pm alongwith Sh Upender Kumar accompanied by one Sh Dhingra of C C No.88/2000 80/96 Lucknow in Maruti Van...
.... I have also submitted NC41 & Bank letter for verification & assignment of the above KVPs from Armapur Post Office. The Post Master, Mr S N Panday took out the Almirah binded book in which applications for KVPs were duly binded . After verifying the Regd Nos, printed Nos of the KVPs, Amount & signature from KVPS application with NC41 and bank's letter . In my presence accompanied Mr Upender Kumar and Mr Singh and Mr Dhingra, Mr Panday put the rubber stamp of the post office on NC41 , Banks letter and also put his signature on NC41, Bank letter & also put his signatures on NC41 , Banks letter and also on 20 KVPs in my presence with red ink ball pen. Due to shortage of the time the remaining KVPs only were left with Mr Panday for his signatures and stamp for assignment which were delivered to the bank on 31.3.98 through Mr Upender Kumar.........."
127 It is pertinent to mention here that Ex PW 11/A was written by accused P K Gupta on 16.4.98, much earlier from the date of registration of the case i.e. FIR Ex PW 27/A RC 3(E)/99/EOWI/DLI on 28.7.99.
128 From the above discussion it is proved beyond reasonable doubts that in all the three cases similar modus operandi was adopted by accused Ashwani Dhingra, D B Singh and Accused Upender Kumar Singh . In all the three cases bank officials were taken to Armapur post Office, C C No.88/2000 81/96 Kanpur in late hours in the evening. It was represented to all the officers that S N Pandey was having intimate relations with accused S N Dhingra and D B Singh. Conspirator S N Pandey at the instance of accused D B Singh and Ashwani Dhingra had come to Meghdoot Hotel and marked the lien on the fake KVPs in the hotel itself.
129 Section 15 of Indian Evidence Act deals with the situation when it becomes obligatory on the part of court to adjudicate on the issue of accidental act or intentional act are done with particular knowledge, forming part of a series of similar occurrence, though in different cases, in each of which the person doing the act was concerned is a relevant fact and may be used as evidence even in other cases. 130 Under catina of judgment Hon'ble High Courts have held that evidence of similar act is admissible to show the intention, AIR 1926 Bom.231 (234), 27 Crl. LJ 1335 (DB), AIR 1939 Cal 335 (336), 40 Crl. L J 667 (DB), AIR 1933 Cal. 135 (138), 34 Crl. LJ 294 (DB).
131 Evidence as to other transaction of cheating is admissible to show that accused were concerned in a series of similar transaction. (AIR 1955 NUC (Cal) 2944). C C No.88/2000 82/96 132 As such Ex PW 11/A is a very good piece of evidence, which if linked with the episode relating to PNB, Ghaziabad, where Rakesh Sharma and Rajesh Grover have also applied for loan on the basis of forged KVPs of 46 CC series, allegedly issued from Armapur post Office, Kanpur, the entire fact would give the impression of scam having the element of common conspiracy facilitated by accused Upender Kumar Singh, Ashwani Dhingra and Dal Bahadhur Singh. Further, PW27 Sh. P K Khanna, IO of the case, very categorically stated that accused P K Gupta, the then Loan Officer had processed the loan, Accused Upender Kumar Singh used to visit and facilitate the processing of the loan, lien marking of KVPs was got done by accused Ashwani Dhingra, Dal Bahadhur Singh and Upender Kumar Singh. 133 Hon'ble Supreme Court in Krishna Mochi & Ors vs State of Bihar (2002) 6 Supreme Court Cases 81 has held as follows:
"Thus, in a criminal trial a Prosecutor is faced with so many odds. The court while appreciating the evidence should not lose sight of these realities of life and cannot afford to take an unrealistic approach by sitting in an ivory tower. I find that in recent time the tendency to acquit an accused easily is galloping fast. It is very easy to pass an C C No.88/2000 83/96 order of acquittal on the basis of minor points raised in the case by a short judgment so as to achieve the yardstick of disposal. Some discrepancy is bound to be there in each and every case which should not weigh with the court so long it does not materially affect the prosecution case. In case discrepancies pointed out are in the realm of pebbles, the court should tread upon it, but if the same are boulders, the court should not make an attempt to jump over the same. These days when when crime is looming large and humanity is suffering and the society is so much affected thereby, duties and responsibilities of the courts have become much more. Now the maxim " Let hundred guilty persons be acquitted, but not a single innocent be convicted " is, in practice, changing the world over and Courts have been compelled to accept that " society suffers by wrong convictions and is equally suffers by wrong acquittals". I find that this Court in recent times has conscientiously taken notice of these facts from time to time."
134 Hon'ble Supreme Court in State of U.P Vs Anil Singh, 1988 Supp SCC 686 : 1989 SCC ( Cri) 48: AIR 1988 SC 1988 has observed as follows:
"It is also our experience that invariably the witnesses add embroidery to prosecution story, perhaps for the fear of being disbelieved. But that is no ground to throw the case overboard, if true, in the main. If there is a ring of truth in the main, the case should not be rejected. It is the duty of the Court to cull out the nuggets of truth from the evidence unless there is reason to believe that the inconsistencies or falsehood are so glaring as utterly C C No.88/2000 84/96 to destroy confidence in the witnesses. It is necessary to remember that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also preside to see that a guilty man does not escape. One is as important as the other. But are public duties which the judge has to perform.
135 In the case of State of W.B. Vs Orilal Jaswal, (1994) 1 SCC 73: 1994 SCC ( Cri) 107 it was held that justice cannot be made sterile on the plea that it is better to let a hundred guilty escape than punish an innocent. Letting the guilty escape is not doing justice, according to law . In the case of Mohan Singh Vs State of M.P (1999) 2 SCC 428: 1999 SCC (Cri) 261: (1999) 1 SCR 276. it was held that Courts have been removing chaff from the grain. It has to disperse the suspicious cloud and dust out the smear of dust as all these things clog the very truth. So long chaff, cloud and dust remain, the criminals are clothed with the protective layer to receive the benefit of doubt. So it is a solemn duty of the Courts, not to merely conclude and leave the case the moment suspicious are created. It is the onerous duty of the Court, within permissible limit to find out the truth . It means, on one hand no innocent man should be punished but on the C C No.88/2000 85/96 other hand to see no person committing an offence should be get scotfree.
136 Prevention of Corruption Act is a social legislation enacted with the object to curb illegal activities of public servants, in these circumstances according to the law of interpretation of Statute, its provision should be interpreted so as to achieve its object. Our Hon'ble Supreme Court in Ram Singh Vs. State of MP (2000) 5 Supreme Court Cases88 has held as follows:
"Prevention of Corruption Act, 1988 -
Nature and interpretation of Held is a social legislation to curb illegal activities of public servant and should be liberally construed so as to advance its object and not liberally in favour of the accused - interpretation of Statutes Particular statutes or provisions - Penal statute - Social Legislation - Interpretation of".
137 According to Section 10 of Indian evidence Act "where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done, or written by anyone of such persons in reference to that common intention, after the C C No.88/2000 86/96 time when such intention was first entertained by anyone of them, is relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it."
138 Conspiracy consists in a combination or agreement between two or more person to do an unlawful act or to do a lawful act by unlawful means. A conspiracy is an inference drawn from the circumstances. There cannot always be much direct evidence about it. Conspiracy can be inferred even from the circumstances giving rise to a conclusive or irresistible inference of an agreement between two or more persons to commit an offence. Since Conspiracy is often hatched up in utmost secrecy, it is most impossible to prove conspiracy by direct evidence. It has to be inferred from the acts, statements and conduct of parties to the conspiracy. Thus, if it is proved that the accused pursued, by their acts, the same object often by the same means, one performing one part of the act and the other another part of the same act so as to complete it with a view to attainment of the object which they were pursuing, the court is at liberty to draw the inference that they conspired together to effect that object. Conspiracy has to be treated as a continuing offence and whosoever is a party to the conspiracy, during the period for which he is charged, is liable under this section. 139 It is not an ingredient of the offence under this C C No.88/2000 87/96 section that all the parties should agree to do a single illegal act. It may comprise the commission of a number of acts. The entire agreement must be viewed as a whole and it has to be ascertain as to what in fact the conspirators intended to do or the object they want to achieve. It is not necessary that each member of conspiracy must know each other or all the details of the conspiracy. It is also not necessary that every conspirator must have taken place in each and every act done in pursuance of a conspiracy.
140 Though to establish the charge of conspiracy there must be agreement, there need not be proof of direct meeting or combination , nor need the parties be brought into each other's presence; the agreement may be inferred from the circumstances raising presumption of a common concerted plan to carry out the unlawful design. Conspiracy need not be established by proof which actually brings the party together; but may be shown like any other fact, by circumstantial evidence. So again it is not necessary that all should have joined in the scheme from the first point; those who come in at a later stage are equally guilty. C C No.88/2000 88/96 141 Conspiracy hatched in secrecy and executed in darkness. In a case of conspiracy, it is not expected from the prosecution that it will produce evidence to show that conspirators executed agreement to commit crime before the witnesses to prove the existence of conspiracy. Conspirators take all precautions to keep their plan secret hence prosecution cannot produce direct evidence to prove agreement to commit conspiracy.
142 In Kher Singh Vs State AIR 1988 SC 1883 it is observed as follows:
" Generally, a conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same. The prosecution will often rely on th evidence of acts of various parties to infer that they were done in reference to their common intention. The prosecution will also more often rely upon the circumstantial evidence. The conspiracy can be undoubtedly proved by such evidence direct or circumstantial. But the Court must require whether the two persons are independently pursuing the same end or they have come together to the pursuit of the unlawful object. The former does not render them conspirators, but the later does. It is however, essential that the offence of conspiracy required some kind of physical manifestation or agreement the express agreement however need not be proved. Nor mutual meetings of the two persons is necessary. Nor it is necessary to prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design may be sufficient. Conspiracy can be proved by circumstances and other C C No.88/2000 89/96 material."
143 In a case of criminal conspiracy any evidence available against any of the accused is admissible against all the accused. Once a conspiracy is proved among the accused, act of one conspirator become act of all other conspirators also. In this regard Ld. SPP placed reliance on Shiv Narain Laxmi Narain Joshi Vs State of Maharashtra, (1980 ) 2 Supreme Court Cases 465 has held as follows:
" Penal Code, 1860 Section 120B - Since it is impossible to adduce direct evidence of conspiracy, the offence can only be proved largely from the inference drawn from acts or illegal omissions committed by the conspirators in pursuance of a common design Once such a conspiracy is proved, act of one conspirator becomes act of the other A coconspirator, who joins subsequently and commits overt acts in furtherance of the conspiracy, held is also liable Evidence Act, 1987 Section 10."
144 Hon'ble Supreme Court in Firozuddin Basheeruddin & Ors. Vs. State of Kerala, (2001) 7 Supreme Court Cases 596 has held as follows:
"Conspiracy is not only a substantive crime but on the basis of it a conspirator can also be held liable for the crimes committed by conspirators in furtherance of the objectives of the conspiracy Conspiracy can be C C No.88/2000 90/96 established on the basis circumstances evidence As regards admissibility of evidence strict standards are not necessary inasmuch as any declaration made by a conspirator in furtherance of and during pendency of a conspiracy though hearsay, is admissible against each coconspirator On facts held, Supreme Court's interference with concurrent finding that criminal conspiracy proved and on the basis offence of murder also made out not called for."
145 Hon'ble Supreme Court in Ram Naryan Popli Vs. CBI AIR 2003, SC 2748 has held as follows:
"The essential ingredient of the offence of criminal conspiracy is the agreement to commit an offence. In a case where the agreement is for accomplishment of an act which by itself constitutes an offence, then in that event no overt act is necessary to be proved by the prosecution because in such a situation, criminal conspiracy is established by proving such an agreement. Where the conspiracy alleged is with regard to commission of a serious crime of the nature as contemplated in Section 120B read with the proviso to sub Section (2) of Section 120A, then in that event mere proof of an agreement between the accused for commission of such a crime alone is enough to bring about a conviction under Section 120B and the proof of any overt act by the accused or by any one of them would not be necessary."
146 Hon'ble Supreme Court in P K Narayan Vs. State of Kerala, All India Criminal Law Reporter 1994 (3) 785, has held as follows:
C C No.88/2000 91/96
"Penal Code, 1860, Section 120B Evidence Act, 1872, Section 3 - Criminal Conspiracy Essence of Criminal conspiracy - It is an agreement to do an illegal act - Agreement can be proved either by direct evidence or by circumstantial evidence or by both - Complicity of the accused - Circumstances proved before, during and after the occurrence required to be considered to decide about the complicity of the accused But if the circumstances are compatible with the innocence of the accused persons then it could not be held that the prosecution had successfully established its case."
147 Hon'ble Supreme Court in S. Swamirathnam, Appellant Vs. State of Madras, Respondent, (s) AIR 1957 S.C. 340 in this regard has held as follows:
"If a specific instance of cheating was proved beyond doubt against any of the accused that would furnish the best corroboration of the offence of conspiracy because conspiracy was the root and the specific instances were the fruit."
148 Agreement to do an illegal act can be proved either by direct evidence or by circumstantial evidence. Circumstances proved before, during and after the occurrence is to be considered to decide about the complicity of the accused in the criminal conspiracy. In this case meeting of mind between the accused can be inferred from the above discussed circumstances raising presumption of a common C C No.88/2000 92/96 concerted plan to carry out the unlawful design to commit the criminal conspiracy.
149 The above said rulings are in consonance with the requisites of section 10 of Indian Evidence Act according to which Ex PW 11/A written and signed by accused P K Gupta prior to registration of the case is relevant evidence against accused Upender Kumar Singh, Ashwani Dhingra and Dal Bahadhur Singh. In this way it is well proved that accused Ashwani Dhingra ad Dal Bhadhur Singh facilitated accused Rakesh Sharma and Rajesh Grover in the matter relating to lien marking on forged and fabricated KVPs.
150 It is argued on behalf of accused that investigation in this case has not been carried out properly. 151 Defence cannot take advantage of bad investigation where there is evidence available on the record against the accused. In this regard our Hon'ble Supreme Court in a latest judgment titled Zindar Ali Vs. State of West Bengal & Anr., 2009 III AD (S C ) 7 held as follows:
"Indian Penal Code, 1860 Secs. 376 and 417 - Immediate disclosure of rape by the prosecutrix - Version C C No.88/2000 93/96 of prosecutrix unchallenged - Admission by the accused in village panchayat - Medical evidence also another proof - Accused behind bar for five years - SC held - Defence cannot take advantage of bad investigation where there is clinching evidence available to the Prosecution."
152 Hon'ble Supreme Court in Rohtash Vs. State of Rajasthan (2007) 2 SCC (Crl.) 382 has held that that defective investigation would not lead to total rejection of prosecution case.
153 Hon'ble Supreme Court in State of MP Vs Man Singh ( 2007) 2 SCC 390 in this regard has held as follows:
" Criminal Trial Investigation Deficiencies in investigation Effect Held, cannot be a ground to discard the prosecution version which is authentic, credible and cogent Criminal Procedure Code, 1973 S.157."
154 In Karnail Singh Vs. State of MP 1995 SCC 977it has been held by Hon'ble Supreme Court that in case of defective investigation it would not be proper to acquit the accused if the case is otherwise established conclusively because in that event it would tantamount to be falling in the hands of an erring Investigating Officer. 155 Considering the case from all the angles there is no merit in this argument of Ld. Defence counsel. 156 Hon'ble Supreme Court in State of Punjab Vs. C C No.88/2000 94/96 Pohla Singh, 2003 (3) CCC 75 has held as follows:
"Appreciation of evidence - The prosecution is not supposed to meet every hypothetical question raised by the defence If crime is to be punished in a glosseme way niceities must yield to realistic appraisal."
157 In view of above discussion this court is of opinion that prosecution has proved its case beyond reasonable doubts against accused Rakesh Sharma, Rajesh Grover, Upender Kumar Singh, Ashwani Dhingra and Dal Bahadhur Singh for the commission of offence U/s 120B, r/w 411, 420, 471 r/w 467 IPC and Section 13(2) r/w 13(1) ( c )& (d) of P C Act, 1988.
158 Prosecution has also proved its case beyond reasonable doubts against accused Rakesh Sharma for the substantive offence punishable U/s 411, 420, 471 r/w 467 IPC 159 Prosecution has also proved its case beyond reasonable doubts against accused Rajesh Grover for the substantive offence punishable U/s 411, 420, 471 r/w 467 IPC. C C No.88/2000 95/96 160 Prosecution has also proved its case beyond reasonable doubts against accused Pradeep Kumar Gupta for the substantive offence punishable U/s 13(2) r/w 13(1) ( c )&
(d) of P C Act, 1988.
161 Accordingly all these accused are held guilty for the aforesaid offences.
ANNOUNCED IN OPEN COURT (V K MAHESHWARI) TODAY ON 20.03.2012 SPECIAL JUDGE: CBI C C No.88/2000 96/96 IN THE COURT OF V .K .MAHESHWARI SPECIAL JUDGE: (P C Act)03 CBI DELHI Corruption Case No. 88/2000 CBI Vs 1 Rakesh Sharma s/o Sh. S D Sharma, MD, M/s SOL Ltd., r/o78/16, Village Ismalka, New Delhi. 2 Rajesh Grover @ Rajesh Kumar, s/o Late Sh. Shanti Lal, r/o H No.8743, Rahatganj, Roshnara Road, Delhi7 at present : House no.993, Sector 39, LIG Flat, Gurgaon. 3 Upender Kumar Singh @ Upender Kumar s/o Suryadev Singh, r/o 106, Humayaunpur New Delhi (Opp. S.J. Enlave) 4 Pradeep Kumar Gupta s/o Ved Prakash Gupta, r/o OD261 B, Pitampura, Delhi34. (Assistant Regional Manager, OBC, C C No.88/2000 97/96 Regional Officer Karol Bagh, New Delhi 5 Ashwani Dhingra s/o Sh. Shiv Narain Dhingra, r/o 22 Pusa Road, New Delhi. 6 Dal Bahadhur singh s/o Late Babu Singh, r/o C88 Indira Nagar Colony, Distt. Raibareilly, UP. R. C No. 3 (E)/99/EOW/I/DLI, ND ORDER ON SENTENCE:
Vide my separate detailed judgment dated 20.3.2012 I convicted accused Rakesh Sharma, Rajesh Grover, Upender Kumar Singh, Ashwani Dhingra and Dal Bahadhur Singh for the commission of offence U/s 120B, r/w 411, 420, 471 r/w 467 IPC and Section 13(2) r/w 13(1) ( c )& (d) of P C Act, 1988. Accused Rakesh Sharma and Rajesh Grover are also convicted for the substantive offence punishable U/s 411, 420, 471 r/w 467 IPC. Accused Pradeep Kumar Gupta is convicted also for the substantive offence punishable U/s 13(2) r/w 13(1) C C No.88/2000 98/96 ( c )& (d) of P C Act, 1988.
2 Arguments on sentence heard.
3 It is argued on behalf of convict Rakesh Sharma that he is only earning member of his family comprises of his wife, two childen and ailing old mother. He is facing this trial since 2001. The moment he came to know the flaw in the securities he has deposited the entire loan amount alongwith interest and penal charges to the bank . He is victim of circumstances . He is not a previous convict. He is not keeping good health . It is prayed that a lenient view may be taken. 4 It is argued on behalf of convict Upender Kumar that he is facing this trial for the last 12 years due to which he remained under stress and strain . He is victim of circumstances and has been made a scape goat. He is jobless for the last more than 12 years. He is not involved in any other case. It is prayed that a lenient view may be taken against him. 5 It is argued on behalf of convict P K Gupta that he is not a previous convict. He is not involved in any other criminal case . Due to his sincere efforts whole of the loan amount advanced to Rakesh Sharma and Rajesh Grover was recovered within 15 days. He is the only earning member of C C No.88/2000 99/96 his family consisting of his 87 years old father who is bed ridden due to paralysis, his wife and a son who is a student of B. Tech . It is prayed that a lenient view may be taken against him.
6 It is argued on behalf of convict Rajesh Grover that he has left his job due to this case. He is not a previous convict. Entire amount has been paid by the main accused. He is not involved in any criminal case. He is 50 years old. He has one daughter who is studying in 12th standard. He is a sole bread earner of the family. He is attached with some CA and getting very small pay. If he will be send to jail his family will come on the verge of starvation. He is a reformed man now. He may be released on probation of good conduct. 7 It is argued on behalf of convict Ashwani Dhingra that he is 54 years old. He is not involved in any other criminal case. His matrimonial life is on the verge of destruction. His wife is earning more than him. His wife is living separately. His daughter is living with him who is in 12th standard. If he will be send to jail it would be difficult for her to survive alone in this world. He is sole earning person. Now he is a reformed man. He is not a previous convict. C C No.88/2000 100/96 8 It is argued on behalf of convict Dal Bahadhur Singh that money has already been paid to the bank. No loss has been caused to any person. He is about 44 years of age having a son of 12 years old . There is none else to look after his family. He is not a previous convict. If he will be send to jail his family will be ruined.
9 It is argued by Ld SPP that accused Rakesh Sharma, Rajesh Grover, Upender Kumar Singh, Ashwani Dhingra , Dal Bahadur Singh and Surender Narain Panday entered into Criminal Conspiracy with accused P K Gupta , Senior Manager ( Loans) Oriental Bank of Commerce, Safdarjung Enclave, New Delhi sometimes during the year 1998 with the object of cheating the Oriental Bank of Commerce , Safdarjung Enclave Branch and in furtherance of said criminal conspiracy accused P K Jain caused pecuniary advantage to the private persons by abusing his official position as a public servant and caused wrongful pecuniary loss to the extent of Rs.83.85 lacs to the Oriental bank of Commerce, S.J, New Delhi . Accused P K Gupta did not properly verify the genuineness of 1198 KVPs of the total value of Rs.1,19,80,000/ purportedly issued by Armapur Post C C No.88/2000 101/96 office, Kanpur ( U.P.) These KVPs were pledged as security against the Demand Loans amounting to Rs.83.85 lacs. Loans were advanced to Rakesh Sharma and Rajesh Grover, taking in consideration of the verification report regarding genuineness of the KVPs submitted by P K Gupta. Later on these KVPs were found to be stolen and forged and were not issued by Armapur Post Office , Kanpur. The act of accused P K Gupta by not verifying the genuineness of said KVPs caused wrongful pecuniary loss to the Bank.
10 It is further submitted by Ld SPP that in criminal appeal No. 299 of 1997, titled State Rajasthan Vs Dhool Singh, Hon'ble Supreme Court, on December 18th , 2003 has held that "the Courts should bear in mind that there is a requirement in law that every conviction should be followed by an appropriate sentence within the period stipulated in law. Discretion in this regard is no absolute or whimsical. It is controlled by law and to some extent by judicial discretion applicable to the facts of the case. Therefore, there is need for the Courts to apply its mind, while imposing sentence , as to why it should be less then C C No.88/2000 102/96 maximum sentence prescribed under law."
11 It is argued that convicts be awarded maximum punishment and consecutive sentence.
12 From what started as petty payments demanded by 'babus' during the license raj days, corruption has taken a much larger form and scale today. Today India is faced with a different kind of challenge. It is not 'petty Bakshish' anymore but scams to the tune of thousands of crores that highlight a political, bureaucratic, industry nexus which if not checked could have a far reaching impact. Corruption is considered to be one of the major roadblocks in India's journey from a developing to a developed economy. There is an urgent need to have a comprehensive framework that would help curtail corruption. Rigid bureaucracy, complex laws and long drawn processes of the legal system deters people from taking legal recourse against corrupt public servants. 13 The entire community is aggrieved if the economic offenders who ruin the economy of the State are not brought to book. A murder may be committee in the heat of moment upon passions being aroused. An economic C C No.88/2000 103/96 offence is committed with cool calculation and deliberate design with any eye on personal profit regardless of the consequence to the Community. A disregard for the interest of the Community can be manifested only at the cost of forfeiting the trust and faith of the community in the system to administer justice in an even handed manner without fear of criticism from the quarter which view white colour crime with the permissive eye unmindful of the damage done to the National economy and national interest.
14 It is correct that accused No.1 had paid the entire amount of loan taken by him as well as by accused No.2 alongwith interest within 15 days of detection of this fraud even without filing any suit against him.
15 After considering all the arguments raised in the Court and in view of the above discussion, convict P K Gupta is sentenced to undergo Two years RI along with a fine of 50,000/ ( Rs. Fifty Thousand only) I D three months S I U/s 120B, 411, 420,471 r/w 467 IPC r/w Section 13 (2) r/w Section 13(1) ( c ) (d) P C Act, 1988.
16 Convict P K Gupta is also sentenced to undergo Three years RI along with a fine of 30,000/ ( Rs. Thirty C C No.88/2000 104/96 Thousand only) I D three months S I for the substantive offence punishable U/s 13 (2) r/w Section 13(1) ( c ) P C Act, 1988.
17 Convict P K Gupta is also sentenced to undergo Three years RI along with a fine of 30,000/ ( Rs. Thirty Thousand only) I D three months S I for the substantive offence punishable U/s 13 (2) r/w Section 13(1) (d) P C Act, 1988.
18 Convict Rakesh Sharma is sentenced to undergo Two years RI along with a fine of 50,000/ ( Rs. Fifty Thousand only) I D three months S I U/s 120B, 411, 420,471 r/w 467 IPC r/w Section 13 (2) r/w Section 13(1) ( c ) (d) P C Act, 1988.
19 Convict Rakesh Sharma is also sentenced to undergo Three years RI along with a fine of 30,000/ ( Rs. Thirty Thousand only) I D three months S I for the substantive offence punishable U/s 411 IPC 20 Convict Rakesh Sharma is also sentenced to undergo Three years RI along with a fine of 30,000/ ( Rs. Thirty Thousand only) I D three months S I for the substantive offence punishable U/s 420 IPC. C C No.88/2000 105/96 21 Convict Rakesh Sharma is also sentenced to undergo Three years RI along with a fine of 30,000/ ( Rs. Thirty Thousand only) I D three months S I for the substantive offence punishable U/s 471 r/w Sec 467 IPC . 22 Convict Rajesh Grover is sentenced to undergo Two years RI along with a fine of 50,000/ ( Rs. Fifty Thousand only) I D three months S I U/s 120B, 411, 420,471 r/w 467 IPC r/w Section 13 (2) r/w Section 13(1) ( c ) (d) P C Act, 1988.
23 Convict Rajesh Grover is also sentenced to undergo Three years RI along with a fine of 30,000/ ( Rs. Thirty Thousand only) I D three months S I for the substantive offence punishable U/s 411 IPC . 24 Convict Rajesh Grover is also sentenced to undergo Three years RI along with a fine of 30,000/ ( Rs. Thirty Thousand only) I D three months S I for the substantive offence punishable U/s 420 IPC . 25 Convict Rajesh Grover is also sentenced to undergo Three years RI along with a fine of 30,000/ ( Rs. Thirty Thousand only) I D three months S I for the substantive offence punishable U/s 471 r/w Sec 467 IPC . C C No.88/2000 106/96 26 Convict Upender Kumar Singh is sentenced to undergo Two years RI along with a fine of 50,000/ ( Rs. Fifty Thousand only) I D three months S I U/s 120B, 411, 420,471 r/w 467 IPC r/w Section 13 (2) r/w Section 13(1) ( c ) (d) P C Act, 1988.
27 Convict Ashwani Dhingra is sentenced to undergo Two years RI along with a fine of 50,000/ ( Rs. Fifty Thousand only) I D three months S I U/s 120B, 411, 420,471 r/w 467 IPC r/w Section 13 (2) r/w Section 13(1) ( c )
(d) P C Act, 1988.
28 Convict Dal Bahadur Singh is sentenced to undergo Two years RI along with a fine of 50,000/ ( Rs. Fifty Thousand only) I D three months S I U/s 120B, 411, 420,471 r/w 467 IPC r/w Section 13 (2) r/w Section 13(1) ( c ) (d) P C Act, 1988.
29 All the sentences will run concurrently. A copy of judgment and this order on sentence be given to all the convicts free of costs. Benefit of Section 428 Cr P C is given to all the accused.
C C No.88/2000 107/96 Ordered accordingly.
ANNOUNCED IN OPEN COURT (V K MAHESHWARI) TODAY ON 23.3.2011 SPECIAL JUDGE: DELHI C C No.88/2000 108/96