Delhi District Court
Cbi vs . Ashok Kumar Sehgal on 1 June, 2015
IN THE COURT OF SH. BRIJESH KUMAR GARG:
SPECIAL JUDGE: CBI01, CENTRAL DISTRICT. DELHI
CC No.253/07 RC : 17(A)/91
PS : CBI/ACB/New Delhi
U/s : 120B IPC r/w Sec. 13
(1) (d) punishable u/s 13(2)
420/468 & 471 of the IPC
CBI Vs. Ashok Kumar Sehgal
S/o Sh. Ved Prakash,
R/o 840, Shastri Nagar, Delhi.
Date of Institution : 19.10.1992
Judgment Reserved on : 15.05.2015
Judgment Delivered on : 29.05.2015
J U D G M E N T
1.In the present case, accused Ashok Kumar Sehgal alongwith coaccused Avtar Krishan Zutshi (since deceased) has been sent up for trial for the offences punishable u/s. 120B IPC r/w Sec. 13 (1) (d) read with Section 13(2) of The Prevention of Corruption Act, 1988. CBI Vs. Ashok Kr. Sehgal CC No. 253/07 pg 1 of 64 Special Judge, CBI01, Central, Delhi Brief facts of the case
2. It has been stated in the charge sheet that on the basis of a source information, the present case bearing No. RC17(A)/91 DLI, dated 18.03.1991 was registered, wherein, it was alleged that accused Ashok Kumar @ Ashok Kumar Sehgal, while working as Sr. Accounts Assistant at Indian Airlines, IGI Airport New Delhi, during the period 198990, entered into a criminal conspiracy with Sh. S.K. Singh, Asstt. Engineering Manager; Sh. A.K. Zutshi, Superintending Aircraft Engineer; Sh. N.Bhattacharjee Asst. Engineering Manager and Sh. V.D. Sharma, Store and Supply Superintendent, with the object to cheat the Indian Airlines by submitting forged/false statement of payment to the employees under Contributory Family Medical Scheme (CFMS), in the name of his coconspirators and in pursuance to the said criminal conspiracy, accused Ashok Kumar @ Ashok Kumar Sehgal, prepared various forged / false statements of payments to the employees in the name of S.K.Singh, A.K.Zutsi, N.Bhattarchjee and V.D.Sharma and CBI Vs. Ashok Kr. Sehgal CC No. 253/07 pg 2 of 64 Special Judge, CBI01, Central, Delhi thereby induced the Accounts Officer, Indian Airlines, IGI Airport, to pass the same for payment.
3. It is further stated that the officials of the Accounts Section treated the false statements of payments as genuine and passed several cheques in the name of the coconspirators for a total amount of Rs.34038.25p. In the present case, the cheque bearing No. 471180, dated 05.01.90 for Rs.3500/ and cheque bearing No. 842854, dated 11.09.90 for Rs. 4020.15p., were issued in the name of the coaccused A.K. Zutshi.
4. It is further stated that the accused persons received their cheques from the Accounts Section and got the same deposited in their respective bank accounts and have, therefore, abused their position as public servants and dishonestly and fraudulently cheated the Indian Airlines for a total amount of Rs.34038.25p.
5. It is further stated that during the investigations, it was CBI Vs. Ashok Kr. Sehgal CC No. 253/07 pg 3 of 64 Special Judge, CBI01, Central, Delhi revealed that the accused in the present case, dishonestly and fraudulently received a sum of Rs.7,520.15p. towards bogus CFMS claim from the Indian Airlines and accused A.K.Zutshi collected two Account Payee Cheques of the said amount and deposited the same in his savings bank account No. 4233 at PNB, Hari Nagar Branch, New Delhi and subsequently, withdrew the same by issuing self cheques and thereby caused a pecuniary loss of Rs.7,520.15p. to the Indian Airlines and caused corresponding gain to himself.
6. It is further stated that accused Ashok Kumar @ Ashok Kumar Sehgal dishonestly and fraudulently processed himself the "statements of payment" to employees under CFMS bearing No. 518, dated 02.01.1990, purported to have been received from CFMS Cell. Thereafter, the bill passing & payment section prepared two cheque forwarding voucher No. 8082, dated 04.01.1990 and No. 1797, dated 10.09.1990 and accused Ashok Kumar @Ashok Kumar Sehgal dishonestly and fraudulently CBI Vs. Ashok Kr. Sehgal CC No. 253/07 pg 4 of 64 Special Judge, CBI01, Central, Delhi himself prepared one cheque forwarding voucher Nos. 8082, dated 04.01.1990, in favour of A.K.Zutshi and the same was sent to accounts section at Thapar House/Safdarjung, New Delhi and thereafter, the accounts section prepared two account payee cheques bearing No.471180, dated 05.01.1990 for Rs.3,500/ and cheque No. 842854, dated 11.09.1990 for Rs.4,020.15p., in favour of A.K.Zutshi and these cheques were forwarded to bill passing & payments section at IGI Airport, New Delhi, for disbursement.
7. It is further stated that accused A.K.Zutshi fraudulently and dishonestly collected the aforesaid two cheques and deposited the same in his savings bank account No. 4233, at PNB, Hari Nagar Branch, New Delhi and the money was subsequently withdrawn by him, by issuing self cheques.
8. It is further stated that both the accused persons have conspired together and have dishonestly and fraudulently cheated CBI Vs. Ashok Kr. Sehgal CC No. 253/07 pg 5 of 64 Special Judge, CBI01, Central, Delhi the Indian Airlines to the tune of Rs.7,520.15p. and caused undue pecuniary loss to the Indian Airlines and corresponding undue pecuniary gain to themselves, by corrupt and illegal means and by abusing their official positions, as such public servants.
9. It is further stated that during investigations, the questioned documents were sent to GEQD, Shimla, for handwriting expert opinion, who gave positive opinion about the handwriting of accused Ashok Kumar @ Ashok Kumar Sehgal. After the completion of investigation and after receiving expert opinion from GEQD, Shimla, the sanctions for prosecution of the accused persons were also obtained from the competent disciplinary authorities and thereafter, the charge sheet was filed in the court and the accused were sent up for trial.
10. During the course of trial, accused A.K.Zutshi had expired and therefore, the proceedings against him stands abated, vide orders dated 16.10.1995.
CBI Vs. Ashok Kr. Sehgal CC No. 253/07 pg 6 of 64 Special Judge, CBI01, Central, Delhi
11. On 08.07.1996, order on charge was passed by the Court of Sh. Dinesh Dayal, Ld. predecessor of this court and in pursuance to the said order, the charges for the offences punishable under Sections 120B r/w Sections 420, 468, 471 IPC and Section 13(1)
(d) punishable under Section 13(2) of The Prevention of Corruption Act, 1988; Sections 420/468/471 IPC and Sec. 13 (1)
(d) punishable under Section 13(2) of The Prevention of Corruption Act, 1988, were framed against the accused Ashok Kumar Sehgal on 19.07.1996, to which, he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
12. During the course of trial, the prosecution examined a total of 25 witnesses and when, after completion of prosecution evidence, the matter was taken up by the Ld. predecessor of this court for recording of statement of accused u/s. 313 Cr.P.C., it was observed by him that there were several material discrepancies, CBI Vs. Ashok Kr. Sehgal CC No. 253/07 pg 7 of 64 Special Judge, CBI01, Central, Delhi on record, in recording the evidence and mentioning of the exhibit numbers on the documents and therefore, vide order dated 17.05.2010, a retrial was ordered by the Ld. Predecessor of this court, with following observations:
"We are now facing a similar situation. The only course left would be to start trial a fresh. Keeping in mind the fact that accused persons have been facing trial for 18 years, I expect CBI to pull up its socks and conclude recording of testimony of witnesses at the earliest. Evidence of those witnesses which is unambiguous and is against any particular accused which is on record shall be read against them. Such a witness need not be examined again. Let it be further clear that I am not going to allow any frivolous adjournments. In case CBI is interested it should ensure appearance of its witnesses in time on all the dates which are fixed for it."
13. During the course of retrial, 08 witnesses were reexamined and 04 witnesses were examined afresh, by the Ld. Predecessor CBI Vs. Ashok Kr. Sehgal CC No. 253/07 pg 8 of 64 Special Judge, CBI01, Central, Delhi of this court. Therefore, in view of the order dated 17.05.2010, only 16 witnesses, namely, PW2 to PW6, PW8 to PW10, PW14, PW15, PW18 to PW21, PW24 & PW25, who were examined prior to 17.05.2010, are to be read in the present case, along with the 12 witnesses, who were examined after 17.05.2010, for the purposes of proving the prosecution case against the accused. The details of these witnesses are as under:
14. The witnesses examined prior to 17.05.2010
i) PW1 Jitender Singh. This witness has been reexamined as NewPW9, in compliance of the order dated 17.05.2010.
ii) PW2 Vinod Kashyap, Director Stores & Purchase, Indian Airlines, who was working as Finance Manager, Indian Airlines, in April 1992. He granted the sanction for prosecution of accused Ashok Kr. Sehgal, vide order Ex.PW2/A.
iii) PW3 Yashpal Vij, who was working as Operating Officer, at New Delhi Main Branch of SBI, on 05.07.1991. He handed over 14 cheques to the Investigating Officer, vide seizure memo, dated CBI Vs. Ashok Kr. Sehgal CC No. 253/07 pg 9 of 64 Special Judge, CBI01, Central, Delhi 05.07.91, Ex.PW3/A.
iv) PW4 Shanti Lal Khanna, who was working as Sr. Vigilance Officer, Indian Airlines, on 06.06.1991. This witness has handed over some documents to the Investigating Officer, vide seizure memo Ex.PW4/A.
v) PW5 Smt. Veena Sethi, Dy. Manager (Finance), Indian Airlines, who was working as Accounts Officer in Cash and Bank Section, Northern Region, Indian Airlines, Thapar House, New Delhi, on 11.09.1991. This witness was section incharge of cash and bank and was entrusted with responsibilities for making payments and receipts to the staff and outsiders. She handed over the documents to the CBI, vide letter dated 11.09.1991 Ex.PW5/A. This witness has also identified the signatures of Shri Santokh Singh and A.N.Vij, the signatories and issuing authority of cheque No. 471180, dated 05.01.1990, Ex.PW5/C1 and cheque No. 842854, dated 11.09.1990 Ex.PW5/C2. Both these cheques have been issued in the name of accused A.K.Zutshi.
vi) PW6 Amrit Nain Vij, Dy. Manager (Finance), Indian Airlines, CBI Vs. Ashok Kr. Sehgal CC No. 253/07 pg 10 of 64 Special Judge, CBI01, Central, Delhi who was working as Accounts Officer, Indian Airlines at Thapar House, New Delhi, in 1990. This witness has identified his signatures and that of Shri Santokh Singh, on cheque No. 842854, dated 11.09.1990, Ex.PW5/C2, issued in the name of A.K.Zutshi. He has also deposed that he along with Santokh Singh were the cosignatories of the cheque and the cheque was sent to Cash & Bank Section of Indian Airlines.
vii) PW7 Shri Santokh Singh. This witness has been re examined as NewPW1, in compliance of the order dated 17.05.2010.
viii) PW8 Ravi Kumar Bajaj, who was working as Manger, Indian Bank, Janakpuri Branch, in the year 1991. He has not deposed anything about the accused, in this case. However, he has deposed about the other connected cases.
ix) PW9 Deepak Kumar Zutshi, who was working as Flight Purser in Indian Airlines, in the year 1991. He deposed that accused A.K.Zutshi was his uncle and he signed the account opening form of account No. 4233, Ex.PW9/A, of accused CBI Vs. Ashok Kr. Sehgal CC No. 253/07 pg 11 of 64 Special Judge, CBI01, Central, Delhi A.K.Zutshi, as introducer, at point 'A'. The account opening form is Ex.PW9/A. He has also identified the signatures of A.K. Zutshi on specimen signature card Ex.PW9/B.
x) PW10 Sh. Dr. Pradyuman Sodhani, was working as Medical Officer at Palam Airport, Indian Airlines. He has not deposed about anything in the present case. However, he has deposed about the other connected cases.
xi) PW11 Sh. Subhash Chander. This witness has been re examined as NewPW11, in compliance of the order dated 17.05.2010.
xii) PW12 Sh. Om Prakash Sharma. This witness has been re examined as NewPW3, in compliance of the order dated 17.05.2010.
xiii) PW13 Shri Shashi Kant Oberoi.This witness has been re examined as NewPW4, in compliance of the order dated 17.05.2010.
xiv) PW14 Dr. Ganesh Shanker Pandey, who was posted as Medical Officer at Palam Airport, in the year 198990. He has CBI Vs. Ashok Kr. Sehgal CC No. 253/07 pg 12 of 64 Special Judge, CBI01, Central, Delhi deposed that the various CFMS sheets do not bear his signatures or the signatures of Dr. P. Sodhani.
xv) PW15 Sh. Hari Kishan Betab, who was working as Senior Manager in PNB, Jail Road Hari Nagar Branch, New Delhi, in the year 1991. He has deposed that vide seizure memo, dated 26.07.91, Ex.PW.15/A, he handed over original account opening form of Savings Bank Account No. 4233 of accused A.K.Zutshi, Ex.PW9/A, along with the original specimen card, Ex.PW9/B, to the IO. He further deposed that the said account was opened on 07.10.1990 in his branch and the said account was introduced by D.K.Zutshi.
xvi) PW16 Sh. Patel Ram Parashar. This witness has been re examined as NewPW6, in compliance of the order dated 17.05.2010.
xvii) PW17 Sh. Raghbir Singh Narwal. This witness has been re examined as NewPW8, in compliance of the order dated 17.05.2010.
xviii) PW18 Sh. Sudan Pal, Sr. Inspector Engineering Section, CBI Vs. Ashok Kr. Sehgal CC No. 253/07 pg 13 of 64 Special Judge, CBI01, Central, Delhi IGI Airport, who was posted as Inspector Engineering in Indian Airlines at IGI Airport, in the year 1991. This witness was called to the CBI office on 20.12.91, when the specimen writing/signatures of accused Ashok Sehgal were taken on the sheets ExPW25/A1 to Ex.PW.25/A5, Ex.PW25/B1 to Ex.PW25/B24 and Ex.PW4/C1 to Ex.PW4/C18.
xix) PW19 Sh. Ashok Kumar Gupta, who was working as Store Helper in Indian Airlines, IGI Airport, New Delhi. He has deposed that specimen signatures of S.K.Singh and A.K.Jutshi, were taken by the CBI, in his presence, as Ex.PW26/A1 to A5 and Ex.PW26/B1 to B5 respectively.
xx) PW20 Sh. Anil Kumar Goel. This witness was posted as Assistant Finance Manager in Indian Airlines, in the year 1990. He was the authorized signatory of the cheque bearing No. 471180, dated 05.01.1990, Ex.PW5/C1, for Rs.3,500/, in favour of Shri A.K.Zutshi.
xxi) PW21 Smt. Meera Bhatia. She was posted as Typist in the office of Superintendent, Indian Airlines, CFMS Cell, Medical CBI Vs. Ashok Kr. Sehgal CC No. 253/07 pg 14 of 64 Special Judge, CBI01, Central, Delhi Section, IGI Airport, New Delhi and used to type the CFMS sheets. She has deposed that CFMS sheet No. 518, Ex.PW14/B was not typed by her and the same was a forged sheet. xxii) PW22 Sh. Sunil Mathur. This witness has been re examined as NewPW2, in compliance of the order dated 17.05.2010.
xxiii) PW23 Sh. Subhash Chander Yadav. This witness has been reexamined as NewPW12, in compliance of the order dated 17.05.2010.
xxiv) PW24 Sh. Manoj Kumar Sharma. He was working as Branch Manager, Central Bank of India, Khan Market Branch, New Delhi. He has proved the specimen signature card as Ex.PW24/B1, pertaining to account No. 4645 of accused Ashok Kumar Sehgal. He has also proved the pay in slips Ex.PW24/D3 to Ex.PW24/D10, through which different cheques were deposited in the said account, for clearance. He has further proved the cheques Ex.PW24/E1 to Ex.PW24/E6, of his bank, through which accused Ashok Kumar Sehgal had withdrawn the CBI Vs. Ashok Kr. Sehgal CC No. 253/07 pg 15 of 64 Special Judge, CBI01, Central, Delhi money from his account.
xxv) PW25 Dr. B. A. Vaid, GEQD, Shimla. This witness has examined the questioned documents and has compared the same with the specimen signatures of accused Ashok Kr. Sehgal and A. K. Zutshi. This witness has proved the letter of CBI, dated 02.01.1992 as Ex.PW32/A and his opinion as ExPW24/H. This witness has also proved the four sheets containing reasons for his opinion as Ex.PW32/B. This witness has also deposed that the reports, along with the documents were returned back to the CBI vide letter No. CX3/92 and CX4/92, dated 29.01.1992 and 13.03.1992, Ex.PW24/G.
15. Witnesses examined after 17.05.2010
i) New PW1 Sh. Santokh Singh, who was posted as Asstt. Finance Manager in Indian Airlines, Finance Department, Safdarjang Airport, New Delhi, in September 1991. He identified his signature on the cheques and vouchers, bearing cheque No. 471180, dated 05.01.1990 for Rs.3,500/; cheque No. 842854, CBI Vs. Ashok Kr. Sehgal CC No. 253/07 pg 16 of 64 Special Judge, CBI01, Central, Delhi dated 11.09.1990, for Rs.4,020.15p. and cheque voucher No. 1797 & 8082. The cheques are Ex.NewPW1/A1 & Ex.NewPW2/A2 and vouchers are Ex.NewPW2/B1 & Ex.NewPW2/B2. He was one of the signatories of the aforesaid cheques and vouchers.
ii) New PW2 Sunil Mathur, who was Senior Accounts Assistant, Indian Airlines at Palam. This witness has deposed that on receipt of statement of payment to employees under CFMS, the cheque forwarding voucher is prepared and sent to Safdarjung Airport for payment through cheque. He has further deposed that the cheque forwarding voucher No. 8082, dated 04.01.89 for Rs.3500/ favouring A.K. Zutshi, Ex.NewPW1/B1 was prepared by Ashok Kumar, on the basis of CFMS No. 518, dated 02.01.90 and the cheque No. 471180 for Rs.3500/ Ex.NewPW1/A1, in the name of A.K. Zutshi, was received in his office. He has further deposed that cheque No. 842852 for Rs. 4020.15p Ex.NewPW1/A2 was prepared on the basis of cheque voucher No. 1797 favouring A.K. Zutshi and this cheque was CBI Vs. Ashok Kr. Sehgal CC No. 253/07 pg 17 of 64 Special Judge, CBI01, Central, Delhi received in his office from Safdarjung Airport and this cheque was handed over to A.K. Zutshi, who received it after putting his signatures at the back of cheque forwarding voucher, Ex.NewPW2/B.
iii) New PW3 Sh. Om Prakash Sharma, who was working as Accounts Officer at Palam Airport in the year 1986. This witness has also narrated the entire procedure for claim of CFMS bills, by the employees of Indian Airlines. This witness has identified the signatures of the two signatories, namely, Sh. Santokh Singh and A.N. Vij, on the cheques Ex.NewPW.1/A1 and Ex.NewPW1/A2.
iv) New PW4 Sh. Shashi Kant Oberoi, who was working as Sr. Accounts Assistant, Indian Airlines at Palam Airport, Delhi, during the year 198990, who has again deposed about the procedure to be adopted for preparation of cheques regarding CFMS claims and its delivery to the concerned employees.
v) New PW5 Sh. Manoj Kumar Kakkar, who joined in Indian Airlines as Training Technician, in the year 1985. He has identified his signatures on the specimen writings & signatures of CBI Vs. Ashok Kr. Sehgal CC No. 253/07 pg 18 of 64 Special Judge, CBI01, Central, Delhi accused Ashok Kumar, marked as S35 to S52, Ex.NewPW5/B (Collectively) (running into 18 sheets).
vi) New PW6 Sh. Patel Ram Parashar, who was posted as Chief Pharmacist at the dispensary at Palam Airport, New Delhi, at the relevant time and was processing the CFMS bills. He has also narrated the procedure of reimbursement of CFMS claims.
vii) New PW7 Vakil Shah, who was posted as Sr. Superintendent in Medical CFMS Cell at Palam Airport in the month of October, 1991. This witness has deposed that the specimen handwriting and signatures of accused Ashok Kr.
Sehgal, marked as S6 to S10 Ex.NewPW6/D1 to Ex.NewPW6/D5 and marked as S52 to S82 Ex.NewPW6/E1 to Ex.NewPW6/E37, were taken, in his presence, in the CBI office. He has also deposed that statement of payment to employees under CFMS bearing No. 518, Ex.NewPW2/A, does not bear the signatures of any of the official staff deputed during the relevant period. He has further stated that the CFMS claim register, Ex.NewPW6/C and CFMS hospital claim register CBI Vs. Ashok Kr. Sehgal CC No. 253/07 pg 19 of 64 Special Judge, CBI01, Central, Delhi Ex.NewPW6/B, do not reflect the name of contents of statement of payment to employees under CFMS No. 518.
viii) New PW8 Raghvir Singh Narwal, who was posted as Sr. Chief Pharmacist in Indian Airlines, Medical Section at Palam Airport, during the relevant time and has deposed that CFMS claims were processed and scrutinized in CFMS Cell office branch, as per the entitlement of the employees. He has further deposed that on 17.10.91, he along with Dr. Sodhani, Medical Officer, Mr. Rajbir Singh, Office Superintendent and Ms. Beena, Office Assistant, visited the CBI office, where the specimen signatures of Dr. P. Sodhani and Ms. Beena were taken by Inspector S.C. Yadav, in their presence. He has proved the sheets containing specimen signatures of Ms. Beena, S83 to S87, as Ex.NewPW8/A1 to Ex.NewPW8/A5 and the signatures of Dr. P. Sodhani, S88 to S92, as Ex.NewPW8/B1 to Ex.NewPW8/B5.
ix) New PW9 Sh. Jitender Singh, who was posted as Account Assistant in Indian Airlines, Palam Airport, New Delhi, during the CBI Vs. Ashok Kr. Sehgal CC No. 253/07 pg 20 of 64 Special Judge, CBI01, Central, Delhi year 1990. He has proved the cheque forwarding voucher No. 1797, dated 10.09.1990, in favour of coaccused A.K. Zutshi (since deceased), as Ex.NewPW1/B1.
x) New PW10 Rajvir Singh, who was posted as Office Superintendent in Medical Section at Palam Ariport, during the relevant time. This witness has deposed that the CFMS payment sheets bearing No. 518, dated 02.01.1990, Ex.New PW10/A has been processed and passed in his medical section. But, there is no entry of this payment sheet in the register, Ex.NewPW10/F.
xi) New PW11 Sh. Subhash Chander, who was posted as Dy. Finance Manager at Palam Airport, in the year 1990. He had made scrutiny of the past record, on the information of fraudulent payments under CFMS sheet and found that a large number of CFMS sheets were prepared fraudulently and sent to the Finance Department for processing the payments. After scrutiny, he prepared the detailed reports Ex.NewPW11/A and New Ex.PW11/B.
xii) New PW12 Sh. Subhash Chander Yadav, Deputy CBI Vs. Ashok Kr. Sehgal CC No. 253/07 pg 21 of 64 Special Judge, CBI01, Central, Delhi Superintendent of Police, CBI, who is the Investigating Officer of the present case.
16. After completion of the prosecution evidence, statement of accused Ashok Kumar Sehgal, was recorded, u/s 313 Cr.PC, on 26.07.2013, wherein, he denied all the incriminating evidence against him and stated that he is innocent and has been falsely implicated in this case. He has further stated that the record showing his innocence has not been placed on the judicial file by the investigating agency. He has further stated that he had told the investigating officer about the fact that his duty timings were from 9.15 am to 5.20 pm and he could not have left his office before 2.00 pm. The working hours of the bank in question were from 10.00 am to 2.00 pm. Moreover the distance between Palam Airport, Safdarjung Airport and Khan Market is about 20 kms and they were not allowed to avail leave of first half of the working day, as a matter of rule. Since it was security prone area so employees upto GradeIX were required to punch their respective CBI Vs. Ashok Kr. Sehgal CC No. 253/07 pg 22 of 64 Special Judge, CBI01, Central, Delhi cards for getting in/out. This record is also not placed on the judicial file.
17. Accused Ashok Kumar Sehgal has not led any evidence in his defence, despite ample opportunity.
18. After completion of trial, final arguments were addressed by Sh. Praneet Sharma, Ld. PP for the CBI and Sh. Umesh Sinha, Advocate, for accused Ashok Kumar Sehgal.
Arguments on behalf of the Prosecution
19. It has been argued by the Ld. PP for the CBI that the accused Ashok Kumar Sehgal was working as a senior accounts officer in Indian Airlines and Indian Airlines was having a CFM scheme for reimbursement of the claims of the medical bills, of its employees and whenever an employee makes an application to the medical section of Indian Airlines, for claim of his medical bill, regarding his treatment, the same is processed and scrutinized by CBI Vs. Ashok Kr. Sehgal CC No. 253/07 pg 23 of 64 Special Judge, CBI01, Central, Delhi the medical officers of the Indian Airlines and then, a 'statement of payment' is sent to the accounts section, for preparation of the vouchers. Thereafter, on the basis of the 'statement of payment', a 'chequeforwarding voucher' is prepared in the accounts section and thereafter it is forwarded to the payment section for preparation of the cheque, in the name of the concerned employee and thereafter, the cheque is released to the concerned employee.
20. He has further argued that in the present case, cheque No. 471180, dated 05.01.1990 for Rs.3500/ Ex.NewPW1/A1 and cheque No. 842854, dated 11.09.1990 for Rs.4020.15p, Ex.NewPW1/A2, were prepared in the name of accused A.K. Zutshi, on the basis of the "statements of payment" to employees and the cheques were duly received by accused A.K. Zutshi and after receiving the cheques, he, in conspiracy with coaccused Ashok Kumar, deposited these cheques, in his savings bank account No. 4233 at Jail Road, Hari Nagar Branch of Punjab CBI Vs. Ashok Kr. Sehgal CC No. 253/07 pg 24 of 64 Special Judge, CBI01, Central, Delhi National Bank, New Delhi and these cheques were duly credited in his account.
21. The Ld. PP for the CBI has also argued that the CFSL report Ex.PW24/H, has proved that the accused Ashok Kumar @ Ashok Kumar Sehgal has forged the "statements of payments to employees under CFMS" No. 518, dated 02.01.90, Ex.PW14/B (Ex.NewPW2/A) and cheque release vouchers No. 1797, dated 10.09.90 for Rs.4020.15p and cheque release voucher No.8082, dated 04.01.89 for Rs.3500/, Ex.NewPW1/B2, in favour of co accused A.K. Zutshi and the cheques were duly received by his coaccused A.K. Zutshi. The cheque Ex.NewPW2/B1, bears the signatures of A.K. Zutshi at its back at point 'Q55' , dated 17.09.90, which clearly establishes the conspiracy between the two accused persons.
22. Ld. PP for the CBI has further argued that the Investigating Officer had seized the various documents, during the investigation CBI Vs. Ashok Kr. Sehgal CC No. 253/07 pg 25 of 64 Special Judge, CBI01, Central, Delhi and the same have been placed on record and during the investigations, the IO also obtained the specimen writings and signatures of both the accused persons and the same were sent for expert opinion, to CFSL and the CFSL report has corroborated the prosecution case. He has further argued that the prosecution has succeeded in establishing on record that the aforesaid two cheques of false CFMS claims were duly deposited in the account of coaccused A.K. Zutshi and were duly credited.
23. Ld. PP for the CBI has further argued that the circumstances, under which the accused Ashok Kumar prepared the CFMS sheets and coaccused A.K. Zutshi received the cheques, without any CFMS claims, are to be explained by the accused persons themselves, as per the provisions of Section 106 of the Indian Evidence Act, 1872. He has prayed that the prosecution has successfully proved the charges for the offences punishable u/s 120B r/w Sec.420, 468,471 IPC and Section 13 (1)(d) punishable under Section 13 (2) of the Prevention of Corruption Act, 1988, CBI Vs. Ashok Kr. Sehgal CC No. 253/07 pg 26 of 64 Special Judge, CBI01, Central, Delhi against both the accused persons and, therefore, both of them, be held guilty and convicted, for the said offences. Arguments on behalf of accused Ashok Kumar Sehgal
24. It has been argued by Shri Umesh Sinha, Advocate, for accused Ashok Kumar Sehgal that there is no evidence on record to prove any conspiracy between the accused persons. He has argued that the accused Ashok Kumar Sehgal has not prepared any cheque and has not deposited any of the cheques in the account of coaccused A.K. Zutshi and therefore, the chain of events, to prove the conspiracy between the two accused persons is incomplete. He has further argued that the accused Ashok Kumar Sehgal has not induced any person and has not caused any wrongful loss to any person and no evidence has come on record to make out even the offences u/s. 420/468/471 IPC against him. He has further argued that it is the duty of the prosecution to prove its case beyond a shadow of doubt and the burden of proof of the prosecution case cannot be shifted to the CBI Vs. Ashok Kr. Sehgal CC No. 253/07 pg 27 of 64 Special Judge, CBI01, Central, Delhi accused persons. He has also argued that the prosecution has miserably failed to prove any case against the accused, by leading cogent and reliable evidence and, therefore, the accused may be acquitted for the offences charged against him. OBSERVATIONS
25. I have carefully perused the case file and I have given my considered thoughts to the arguments addressed by the Ld. PP for the CBI and the Ld. defence counsel.
26. Perusal of the record shows that NewPW11 (PW11), Sh.
Subhash Chander, has deposed that in the year 1990, he was posted as Dy. Finance Manager at Palam Airport, New Delhi, and was dealing with different sections of the office, including the Medical Claim Bills in the Bill Passing Section. He has further deposed that during the year 1990, it was brought to his notice that in some cases, fraudulent payments have been made under the CFMS Sheets. Thereafter, he made scrutiny of past record CBI Vs. Ashok Kr. Sehgal CC No. 253/07 pg 28 of 64 Special Judge, CBI01, Central, Delhi and found that there were quite a number of cases, where the sheets were prepared fraudulently and were sent to the finance department for processing the payment. After scrutiny of the record, he prepared the detailed report Ex.NewPW11/A. This witness has further deposed that during scrutiny of record, it was also brought to his notice that one fake sheet, regarding CFMS claim, regarding hospitalization, was received in the Bill Passing & Payment Section and the dealing staff Sh. S.K. Oberoi had doubts that such sheet was not signed by the Medical Officer and thereafter, the medical section, after verifying the sheet, told that the sheet was not prepared by them and was never got signed by the medical officer. The said sheet was not passed for payment and was handed over to the vigilance officer, for further investigations. This witness has further stated that he made the scrutiny of the past records and prepared another detailed report Ex.NewPW11/B. CBI Vs. Ashok Kr. Sehgal CC No. 253/07 pg 29 of 64 Special Judge, CBI01, Central, Delhi
27. Perusal of the record further shows that the reports Ex.NewPW11/A and Ex.NewPW11/B, have mentioned the names of various persons, to whom the fraudulent payments have been made against the false CFMS claims. Perusal of these reports further indicate that a fraudulent payment of a total amount of Rs. 7520.15p. was made to accused A.K.Zutshi, vide two cheques bearing No. 471180 & 842854, dated 05.01.1990 and 11.09.1990, respectively for a sum of Rs.3500/ & Rs.4020.15p., respectively, and the same were credited in his savings bank account on various dates, as mentioned in the report Ex.NewPW11/A.
28. During the trial, the prosecution has examined several witnesses, who have explained the procedure for the settlement of CFMS claims in Indian Airlines. PW5 Smt. Veena Sethi, who was working as Accounts Officer, in Cash & Bank Section, Northern Region, Thapar House, Indian Airlines, on 11.09.91 has deposed that for making CFMS payments to the employees of Palam Airport, her cash & Bank Section used to receive CBI Vs. Ashok Kr. Sehgal CC No. 253/07 pg 30 of 64 Special Judge, CBI01, Central, Delhi statements of payments along with vouchers from Palam Airport, which were processed by the staff in the Section and cheques were typed out and checked and verified and put up for signatures, to the Bank Signatories. Later on, the copy of the voucher along with the cheque processed, was sent to Palam Airport for handing over the same to the staff against signatures. She had further deposed that Sh. Santokh Singh, Sh. A.N. Vij, Sh. O.D. Sharma & Sh. A.K. Goel, were the various signatories of the various cheques. She had further deposed that the cheque No. 471180, dated 05.01.1990 Ex.PW5/C1 (Ex.NewPW1/A1), was signed by Sh. Santokh singh and cheque No. 842854, dated 11.09.1990, Ex.PW5/C2 (Ex.NewPW1/A2), has been signed by Sh. Santokh Singh and Sh. A.N.Vij, as authorized signatories. NewPW1 Sh. Santokh Singh has also deposed that aforesaid two cheques bear his signatures.
29. NewPW2 Sh. Sunil Mathur, who was Sr. account assistant, in the year 1990, has deposed that on receipt of statements of CBI Vs. Ashok Kr. Sehgal CC No. 253/07 pg 31 of 64 Special Judge, CBI01, Central, Delhi payments to employees, under CFMS, the cheque forwarding vouchers were prepared and the same were sent to Safdarjung Airport, for making the payments through cheque and a cheque against the payment is made if the payment is more than Rs. 2500/. This witness has deposed that cheque forwarding vouchers bearing No. 8082, dated 04.01.1989, Ex.NewPW1/B2 was prepared by accused Ashok Kumar, on the basis of CFMS sheet No. 518, dated 02.01.1990. This witness has further deposed that the corresponding entries were made in miscellaneous payment register. Thereafter, the cheque forwarding vouchers were sent to the Safdarjung office, for payment. He has further stated that the cheque forwarding vouchers bearing No. 1797 favouring A.K.Zutshi was also sent to Safdarjang Airport for preparation of cheque. The cheque No. 471180 for Rs.3500/ Ex.NewPW1/A1 and cheque No. 842854 for Rs.4020.15p., Ex.NewPW1/A2, both in the name of A.K.Zutshi, were received in his office, from there and cheque Ex.NewPW1/A2 was handed over to Sh. A.K.Zutshi, who received CBI Vs. Ashok Kr. Sehgal CC No. 253/07 pg 32 of 64 Special Judge, CBI01, Central, Delhi the same after putting his signatures at the back of cheque forwarding voucher Ex.NewPW2/B at point 'Q55'.
30. NewPW3 Om Prakash Sharma, who was working as accounts officer at Palam Airport, during the relevant period, has also deposed that employees of Indian Airlines submit their Contributory Family Medical Scheme claim bills to the medical department, where the same were processed and passed by the medical officer, for payment. Medical section used to prepare the 'statements of payments to the employees', in prescribed proforma and get it signed by the medical officer and then, it used to come in the accounts section (Bill Passing) where the concerned staff used to scrutinize whether the payment was to be made in cash or by cheque. If the claim amount was less than Rs. 2500/ then the payment was to be made in cash, otherwise, by cheque. Thereafter, through a forwarding memo, the same in the matter relating to cheque, was sent to Safdarjung Airport (Regional Head Office), where the accounts department used to CBI Vs. Ashok Kr. Sehgal CC No. 253/07 pg 33 of 64 Special Judge, CBI01, Central, Delhi prepare the cheque and send it to him along with the voucher for delivery to the individual concerned employee. This witness has identified his signatures on the cheque forwarding memo Ex.NewPW2/B, in the name of A.K.Zutshi (Staff No. 290360).
31. NewPW4 Shashi Kant Oberoi, who was posted as Sr. accounts Assistant, in Indian Airlines, Palam Airport, in the year 198990, has also deposed in a similar fashion. He has also stated that cheque forwarding memo No. 8082, dated 04.01.89, for Rs.3500, in favour of A.K.Zutshi (Staff No. 290360) Ex.NewPW1/B2, was not prepared by him. He has also stated that the miscellaneous payment register also does not contain any entry regarding cheque forwarding voucher No. 8082, Ex.NewPW1/B2.
32. Perusal of the record further shows that prosecution has also examined various witnesses from the medical section of Indian Airlines. PW14 Dr. Ganesh Shankar Pandey has deposed that CBI Vs. Ashok Kr. Sehgal CC No. 253/07 pg 34 of 64 Special Judge, CBI01, Central, Delhi during the year 198990, he was posted at Palam Airport as Medical officer, and all the doctors posted there were empowered to pass the medical claims preferred by the employees of the Indian Airlines. All the medical claims were processed and passed in his CFMS Section. He has also deposed that every sheet pertaining to CFMS statement was entered in the register, 'CFMS hospital claim register', maintained by the staff. The said register has been proved on record as Ex.PW14/A. He has further deposed that the CFMS sheet Ex.PW14/B, does not bear his signatures. The CFSL report Ex.PW24/H has corroborated the fact that the signatures of Dr. P. Sodhani were also forged by the accused Ashok Kumar. In his crossexamination, this witness has deposed that if CFMS claim sheets are not entered in the claim medical register of the hospital, Ex.PW14/A, it shows that no claim was preferred by the employee concerned.
33. NewPW6 Sh. Patel Ram Parashar, the Chief Pharmacist in the dispensary at Palam Airport, New Delhi, has deposed that he CBI Vs. Ashok Kr. Sehgal CC No. 253/07 pg 35 of 64 Special Judge, CBI01, Central, Delhi was handling the dispensing and processing of the CFMS bills and on receipt of the CFMS bills from the concerned employees, the same are entered in two registers, namely, hospital claim register and other register and the same were processed by the Pharmacist. Thereafter, the registration numbers were given to the respective bills and the pharmacist was to ensure that the required documents were attached with the medical claims along with the prescriptions and other documents. He was also required to ensure the genuineness of the documents, by tallying with each other, and thereafter the bills were handed over to the Office Assistants/ Superintendents for processing. The office assistants used to make entry in medical claim file of every claimant, to have a check of his claims and limits, diseases etc. Thereafter, the office assistants used to put up the claim bills before the Medical Officer, who used to check the genuineness of the bills and kinds of diseases, for which the bills were permissible as per rules. Thereafter, claim sheets were prepared by office assistants, which includes name of employees, staff members, claim number, CBI Vs. Ashok Kr. Sehgal CC No. 253/07 pg 36 of 64 Special Judge, CBI01, Central, Delhi amount claimed & amount passed. Claim sheets were signed by the typist, bearing their name in them. Office Assistants used to check the claimed bills and checked and signed by the doctor. Thereafter, the claim sheets/ payment sheets were checked and signed by the doctor and three copies of the payment sheets, out of five, were sent to accounts / finance department and one copy of the payment sheet was attached with the master file of the office and one copy was used to be attached with the bill and thereafter, the finance department used to pay, as per order.
34. NewPW8 Raghbir Singh Narwal, who was Sr. Chief Pharmacist, at Medical Section of Indian Airlines at Palam Airport, New Delhi, has also deposed in a similar fashion. In addition, he has also deposed that Dr. P. Sodhani was also authorized to pass CFMS claims, as he was the Medical Officer, at that time. He has further stated that Mrs. Beena, Office Assistant and Mrs. Meera Bhatia, typist, were making entries in the claim register and the final payment sheets were prepared by them and finally passed CBI Vs. Ashok Kr. Sehgal CC No. 253/07 pg 37 of 64 Special Judge, CBI01, Central, Delhi by the Medical Officer. He has further deposed that on 17.10.1991, he along with Dr. Sodhani, Mr. Rajbir Singh, Office Superintendent and Ms. Beena, visited the CBI office, where specimen signatures of Dr. P. Sodhani and Ms. Beena were taken. This witness has identified his signatures on specimen signature sheets of Dr. P. Sodhani (S88 to S92) and Ms. Beena (S83 to S87), Ex.NewPW8/B1 to Ex.NewPW8/B5 and Ex.NewPW8/A1 to Ex.NewPW8/A5, respectively.
35. Perusal of the record and the reports Ex.NewPW11/A & Ex.NewPW11/B and the CFMS sheet No. 518, Ex.NewPW2/A (Ex.PW14/B) and cheque forwarding vouchers No. 1797 and 8082, Ex.NewPW1/B1 and Ex.NewPW1/B2, respectively indicate that fraudulent claims of Rs.3500/, Rs.4020.15p, totalling Rs.7520.15p, were passed in favour of accused A.K. Zutshi. There is no document on record which indicates that accused A.K. Zutshi, has preferred any such CFMS claim. It has also come on record that in pursuance to these CFMS sheets and CBI Vs. Ashok Kr. Sehgal CC No. 253/07 pg 38 of 64 Special Judge, CBI01, Central, Delhi vouchers, cheque No.471180, dated 05.01.90, for Rs.3500/, Ex.PW5/C1 (Ex.NewPW1/A1) and cheque No. 842854, dated 11.09.90, for Rs.4020.15p., Ex.PW5/C2 (Ex.NewPW1/A2), were prepared in the name of accused A.K. Zutshi and the same were duly received by accused A.K. Zutshi. The cheque release voucher Ex.NewPW2/B, vide which the cheque No. 842854 for Rs.4020.15p was received by accused A.K. Zutshi, bears his signatures, on its back side, at point 'Q55'. The CFSL report, Ex.PW24/H, has proved that this signature was of accused A.K. Zutshi.
36. During the course of investigations, the IO Inspector S.C. Yadav, has taken the specimen handwritings and signatures of accused Ashok Kumar Sehgal and A.K. Zutshi, in the presence of witnesses. NewPW7 Vakil Shah has categorically stated that he was called to the CBI office, where the specimen writings & signatures of accused Ashok Sehgal were taken in his presence. He has proved the sheets S6 to S10, containing specimen CBI Vs. Ashok Kr. Sehgal CC No. 253/07 pg 39 of 64 Special Judge, CBI01, Central, Delhi signatures of accused Ashok Kumar, as Ex.NewPW6/D1 to Ex.NewPW6/D5. This witness has also proved the specimen writings of accused Ashok Kumar contained in sheets S55 to S82 as Ex.NewPW6/E1 to Ex.NewPW6/E37.
37. During the investigations, the specimen signatures of accused A.K. Zutshi were also taken by the investigating officer, NewPW12 Subhash Chander Yadav, Superintendent of Police, on 11.11.1991, on the sheets marked as S98 to S102, which are Ex.PW12/C (five sheets). PW19 Ashok Kumar Gupta, has also deposed that the specimen signatures of accused A.K. Zutshi, were taken before him by Inspector Yadav in his presence.
38. The specimen signatures and handwritings of accused A.K. Zutshi as well as of accused Ashok Kumar Sehgal, were sent to GEQD, Shimla, for expert opinion and all the questioned documents and signatures were duly compared by PW25 Dr. B.A. Vaid, with the specimen signatures and handwritings of both the CBI Vs. Ashok Kr. Sehgal CC No. 253/07 pg 40 of 64 Special Judge, CBI01, Central, Delhi accused persons. PW25 Dr. B.A. Vaid has proved his opinions No. CX3/92 and CX4/92 dated 29.1.92 & report as Ex.PW24/H. The report Ex.PW24/H has established on record that the CFMS Sheets bearing No. 518, dated 02.01.1990 Ex.PW14/B (Ex.NewPW2/A), which bear the questioned signatures / handwriting of accused Ashok Kumar at points Q37, Q42, bear the writings and signatures of accused Ashok Kumar. The report has also established on record that the cheque forwarding vouchers No. 8082, dated 04.01.1989 for Rs.3500/ Ex.NewPW1/B2, bearing questioned writings of accused Ashok Kumar, at points Q41 & Q6, were also prepared by him. The report Ex.NewPW24/H has specifically mentioned that the questioned writings and signatures stamped and marked Q7 to Q34, Q36 to Q43, Q45, Q56 & S6 to S82 have been written by one and the same person.
39. Perusal of the record further indicates that the two cheques, i.e. the cheque Ex.PW.5/C1 (Ex.NewPW1/A1) and Ex.PW.5/C2 CBI Vs. Ashok Kr. Sehgal CC No. 253/07 pg 41 of 64 Special Judge, CBI01, Central, Delhi (Ex.NewPW1/A2), were deposited in the savings bank account of accused A.K. Zutshi and the same were duly cleared. PW3 Yashpal Vij had handed over the said original cheques to the CBI / IO, during investigations on 05.07.1991, vide seizure memo Ex.PW.3/A.
40. During the trial PW15 Hari Kishan Betab has proved the various documents pertaining to the savings bank account No. 4233 in the name of accused A.K.Zutshi at P.N.B., Jail Road, Hari Nagar, Delhi. He handed over the account opening form of S.B. A/c No. 4233 in the name of accused A.K.Zutshi, alongwith specimen signature card of A.K.Zutshi Ex.PW.9/A & Ex.PW.9/B to the CBI, vide seizure memo Ex.PW.15/A. He has also deposed that the account of A.K.Zutshi was opened at his branch on 07.10.80, after completion of required formalities and it was introduced by Z.K.Zutshi. He has also proved the two payinslips as Ex.PW.15/B & Ex.PW.15/C. This witness has further deposed that the cheque Ex.PW.5/C1 for Rs.3500/ & cheque Ex.PW. CBI Vs. Ashok Kr. Sehgal CC No. 253/07 pg 42 of 64 Special Judge, CBI01, Central, Delhi 5/C2 for rs.4020.15p. Were presented for clearing on 21.01.1990 & were duly credited in the account of accused A.K.Zutshi. The relevant entries were made in the statement of account of the aforesaid savings account. The statement of account of Saving Bank A/c No. 4233 of accused A.K.Zutshi, has been proved on record as Ex.PW.15/D.
41. During the course of investigations, IO NewPW12 Subhash Chander Yadav, SP, had collected various documents from the Indian Airlines as well as from Punjab National Bank, Jail Road, Hari Nagar, Delhi. The various seizure memos have been proved on record, by him. He has categorically stated that he had collected various documents from various persons vide various seizure memos. He has also deposed that he also seized the original cheques, the cash vouchers, i.e., the cheque forwarding vouchers, the payinslips, the CFMS register and the hospitalization Bill Passing Register etc. He has also deposed that the specimen signatures of accused A.K.Zutshi (S98 to CBI Vs. Ashok Kr. Sehgal CC No. 253/07 pg 43 of 64 Special Judge, CBI01, Central, Delhi S102) were taken by him in the presence of witness Ashok Gupta. He has further deposed that the specimen signatures and handwriting of accused Ashok Kumar Sehgal, from S1 to S5 & S11 to S34 were kept in CC No. 251/07, S6 to S10 & S53 to S82 were kept in CC No. 265/07 & S35 to S6=52 were kept in present CC No. 253/07. He has further deposed that all the questioned documents along with the specimen signatures and writings of both the accused persons were sent by him to GEQD, Shimla, for comparison and opinion through forwarding letter of his S.P., Ex.NewPW12/D. He has further deposed that he received the GEQD opinion through his the then S.P. He has further deposed that after completion of investigations, all the relevant documents, including the statements of witnesses were sent to the Competent Authority for obtaining sanction for prosecution of both the accused persons. He received the Sanction Order, dated 01.04.1992 in respect of accused Ashok Kumar Sehgal Ex.PW.2/A and thereafter filed the charge sheet. CBI Vs. Ashok Kr. Sehgal CC No. 253/07 pg 44 of 64 Special Judge, CBI01, Central, Delhi
42. The evidence on record has established that the cheques Ex.PW5/C1 to Ex.PW5/C2 ( Ex.NewPW1/A1 & Ex.NewPW1/ A2), were got issued in the name of accused A.K.Zutshi (since deceased), by accused Ashok Kumar Sehgal, without any CFMS claims by A.K.Zutshi and the same were duly deposited in his savings bank account No. 4233 at Punjab National Bank, Jail Road, Hari Nagar, New Delhi. These cheques were duly credited in the Savings Bank A/c No. 4233 of A.K.Zutshi.
43. As per section 106 of the Indian Evidence Act, 1872, it is for the accused persons to explain the circumstances under which the cheques Ex.PW5/C1 and Ex.PW5/C2 (Ex.NewPW1/A1 and Ex.NewPW1/A2) were credited in the savings account of accused A.K. Zutshi. But, the accused persons have failed to discharge this burden.
CBI Vs. Ashok Kr. Sehgal CC No. 253/07 pg 45 of 64 Special Judge, CBI01, Central, Delhi
44. It was held by the Hon'ble Supreme Court, in case titled as "Krishna Kumar vs. Union of India", reported as AIR 1959 Supreme Court 1390, as under :
9. It is not necessary or possible in every case to prove in what precise manner the accused person has dealt with or appropriated the goods of his master. The question is one of intention and not a matter of direct proof but giving a false account of what he has done with the goods received by him may be treated a strong circumstances against the accused person. In the case of a servant charged with misappropriating the goods of his master the elements of criminal offence of misappropriation will be established if the prosecution proves that the servant received the goods, that he was under a duty to account to his master and had not done so. If the failure to account was due to an accidental loss then the facts being within the servant's knowledge, it is for him to explain the loss. It is not the law of this country that the prosecution has to eliminate all possible defences or circumstances which may exonerate him. If these facts are within the knowledge of the accused then he has to prove them. Of course the prosecution has to establish a prima facie case in the first instance. It is not enough to establish facts which give rise to a suspicion and then by reason of S. 106 of the Evidence Act to throw the onus on him to prove his innocence. See Harries C.J. in Emperor vs. Santa Singh, AIR 1944 Lah 339 at p. 345. In the present case the appellant received the consignment of CBI Vs. Ashok Kr. Sehgal CC No. 253/07 pg 46 of 64 Special Judge, CBI01, Central, Delhi goods which came from Tatanagar. It is admitted that he removed them and it was found by the High Court that they never reached the Central Tractor Organization. He gave an explanation in court which has been found to be false. Before Mr. F.C. Gora he made a statement to the effect that he had lost the Railway Receipt and therefore had never got the delivery of the goods which was also false. In these circumstances, in our opinion, the court would be justified in concluding that he had dishonestly misappropriated the goods of the Central Tractor Organization. The giving of false explanation is an element which the Court can take into consideration (Emperor v. Chattur Bhuj, ILR 15 Pat 108 ; (AIR 1936 Pat 350). In Rex V. William (1836) 7 C and P 338 Coleridge J. charged the jury as follows :
"The circumstances of the prisoner having quitted her place, and gone off to Ireland, is evidence from which you may infer that she intended to appropriate the money : and if you think that she did so intend, she is guilty of embezzlement".
Again in Reg v. Lynch, (1854) 6 Cox CC 445, Moore J., said :
"You have further the fact that, after getting the money, the prisoner absconded and did not come back till he was in custody. You may infer that he intended to appropriate this money, and if so, he is guilty of embezzlement".
(emphasis supplied by me) CBI Vs. Ashok Kr. Sehgal CC No. 253/07 pg 47 of 64 Special Judge, CBI01, Central, Delhi
45. It has been held by the Hon'ble Orissa High Court in case titled as Brahmananda Mohanty v. The State, reported as AIR 1967 ORISSA 135 (V 54C 60), as under :
16. The settled position in law is that it is not necessary or possible in every case to prove in what precise manner the accused person has dealt with or appropriated the goods; the question is one of the intention and not a matter of direct proof but giving a false account of what he has done with the goods received by him may be treated as a strong circumstance against the accused person. In such a case the elements of criminal offence of misappropriation will be established if the prosecution proves that the accused received the goods, that he was under duty to account for the same and had not done so. It is not the law that the prosecution has to eliminate all possible evidences or circumstances which may exonerate him. If the facts are within the knowledge of the accused then he was to prove them. Of course the prosecution has to establish a prima facie case in the first instance. It is enough to establish facts which give rise to a suspicion: and then by reason of S. 106 of the Evidence Act, the onus is thrown on the accused to prove his innocence.
(emphasis supplied by me)
46. It was also held by the Hon'ble Orissa High Court in case titled as Arundhati Keutuni and another v. The State, reported CBI Vs. Ashok Kr. Sehgal CC No. 253/07 pg 48 of 64 Special Judge, CBI01, Central, Delhi as 1968 Cri. L.J. 848 (V. 74, C.N. 234), as under :
10. It is necessary in this regard to examine the applicability of S. 106 of the Evidence Act. The normal rule is that the onus is always on the prosecution to establish the guilt of the accused beyond reasonable doubt. Section 106 of the Evidence Act does not affect this rule in any manner that when any fact is especially within knowledge of any person, the burden of proving that fact is upon him. It cannot be invoked to make up the defect of the prosecution to produce evidence of facts and circumstances leading to the guilt of the accused. Prosecution must establish all elements of the offence. Positive facts must always be proved by the prosecution. This rule has always however, no application to negative facts. It is not for the prosecution to anticipate and eliminate all possible defence of circumstances which may exonerate an accused. When a person does not act with some intention other than the character and the circumstances of the act suggest, it is not for the prosecution to eliminate all other possible intentions. If the accused had a different intention, that is a fact especially within his knowledge which he must prove. Illustration (a) appended to S. 106 of the Evidence Act is directly on the point. The same view has been taken in AIR 1960 Mad 218, in re Naina Mohamed.
(emphasis supplied by me)
47. In the present case also, the prosecution has successfully proved that accused Ashok Kumar Sehgal and A.K. Zutshi (since CBI Vs. Ashok Kr. Sehgal CC No. 253/07 pg 49 of 64 Special Judge, CBI01, Central, Delhi deceased) have conspired together with the common object to cheat their employer Indian Airlines for a sum of Rs.7520.15p. It has been established on record that accused Ashok Kumar Sehgal had prepared false "statements of payment to employees under CFMS" bearing No. 518, dated 02.01.1990, on the basis of which cheque forwarding voucher No. 8082, dated 04.01.1990, for Rs.3500/ was prepared. Thereafter, the cheque for Rs.3500/ was prepared in the name of coaccused A. K. Zutshi (since deceased) on the basis of aforesaid CFMS sheet and cheque forwarding voucher. As per Section 106 of the Indian Evidence Act, it was for the accused Ashok Kumar Sehgal to explain the circumstances under which he prepared the CFMS sheets, without any medical bill or medical claim being preferred by co accused A.K. Zutshi (since deceased). It was for accused Ashok Kumar Sehgal to explain the circumstances under which he prepared the cheque forwarding voucher and mixed these documents with other documents for preparation of the cheque in the name of coaccused A.K. Zutshi (since deceased). It was for CBI Vs. Ashok Kr. Sehgal CC No. 253/07 pg 50 of 64 Special Judge, CBI01, Central, Delhi accused A. K. Zutshi (since deceased) to explain under which circumstances the two cheques wroth Rs. 7520.15p were received by him and were credited in his savings bank account. It was for the accused persons to explain the circumstances under which they utilized the aforesaid amount for their own use. But, none of the circumstances have been explained by the accused Ashok Kumar Sehgal.
48. Furthermore, the accused A.K. Zutshi (since deceased), in connivance with accused Ashok Kumar Sehgal, illegally received the two cheques Ex.NewPW1/A1 and Ex.NewPW1/A2 worth a total amount of Rs.7520.15p and got the same duly credited in his savings bank account. Both the accused persons have misappropriated the total amount of Rs.7520.15p, illegally and have not given any intimation to their department, regarding the wrong credit of these cheques in the account of accused A.K. Zutshi (since deceased). None of the accused persons have asked any query, either from the Bank officials or from their CBI Vs. Ashok Kr. Sehgal CC No. 253/07 pg 51 of 64 Special Judge, CBI01, Central, Delhi employer, regarding the false credit of these two cheques, in the account of accused A.K. Zutshi (since deceased). Both the accused persons have, therefore, misappropriated the said amount for their own use and have not returned back the said amount to their employer, till date and have thereby caused a pecuniary loss of Rs.7520.15p to their employer Indian Airlines.
49. In view of above discussion, I am of the considered opinion that the prosecution has successfully proved its case against the accused Ashok Kumar Sehgal, beyond a shadow of doubt, for the offence punishable u/s. 120B of The Indian Penal Code r/w Sec. 420 IPC & Sec. 13(1) (d) punishable u/s. 13(2) of The Prevention of Corruption Act, 1988, as well as for the offences u/s. 420 IPC & Section 13(1) (d) punishable u/s. 13 (2) of the Prevention of Corruption Act, 1988. The prosecution has also succeeded in proving its case, for the offences under Section 468 & 471 of The Indian Penal Code, against accused Ashok Kumar Sehgal. He is therefore, held guilty & convicted for the said offences. CBI Vs. Ashok Kr. Sehgal CC No. 253/07 pg 52 of 64 Special Judge, CBI01, Central, Delhi It is ordered accordingly.
Let the convict be heard on the point of sentence on the next date of hearing, i.e., on 01.06.2015.
Announced in open Court on 29 day of May, 2015 th BRIJESH KUMAR GARG Special Judge:CBI01 Central District. Delhi CBI Vs. Ashok Kr. Sehgal CC No. 253/07 pg 53 of 64 Special Judge, CBI01, Central, Delhi IN THE COURT OF SH. BRIJESH KUMAR GARG:
SPECIAL JUDGE: CBI01, CENTRAL DISTRICT. DELHI CC No.253/07 RC : 17(A)/91 PS : CBI/ACB/New Delhi U/s : 120B IPC r/w Sec. 13 (1)
(d) punishable u/s 13(2) of the P.C. Act; 420, 468 & 471 of the IPC CBI Vs. Ashok Kumar Sehgal ORDER ON 'SENTENCE' 01.06.2015
1. Vide judgment dated 29.05.2015, the accused Ashok Kumar Sehgal was held guilty and convicted for the offences punishable u/s 120B of The Indian Penal Code r/w Sec. 420 IPC & Sec.
13(1) (d) punishable u/s. 13(2) of The Prevention of Corruption Act, 1988, as well as for the substantive offences punishable under Section 420, 468, 471 IPC & Section 13(1) (d) punishable u/s. 13 (2) of the Prevention of Corruption Act, 1988. CBI Vs. Ashok Kr. Sehgal CC No. 253/07 pg 54 of 64 Special Judge, CBI01, Central, Delhi
2. Sh. Praneet Sharma, Ld. PP for CBI and Sh. Umesh Sinha, Advocate, for the convict Ashok Kumar Sehgal, have addressed their arguments on the point of sentence, today.
3. Sh. Praneet Sharma, Ld. PP for the CBI, has prayed for taking a strict view and for awarding an exemplary punishment to the convict. He has further argued that the corruption has taken its roots, deep in society and therefore, the maximum punishment be awarded to the convict to give a message to the society that the corruption is to be dealt with heavy hands. He has further argued that the convict may be awarded enhanced punishment, in terms of the provisions of Section 75 IPC, as the convict had already been convicted by this Court in three previous cases, i.e., in CC No. 251/07, CC No. 254/07 & CC No. 265/07 and was awarded a sentence of R.I. for a period of four years and a fine of Rs. 10,000/, for the offences, under Section 420 IPC as well as for the offences punishable under Section 468/471 IPC. CBI Vs. Ashok Kr. Sehgal CC No. 253/07 pg 55 of 64 Special Judge, CBI01, Central, Delhi
4. On the other hand, the Ld. Defence counsel Sh. Umesh Sinha, Advocate, has prayed for taking a lenient view. He has argued that the convict is about 58 years of age and is having two minor children and is the sole bread earner for his family as his wife is a homemaker. He has also argued that the convict has suffered serious heartattacks, on two previous occasions, in judicial custody, as he was serving sentence in three other cases, i.e., CC No. 251/07, CC No. 254/07 and CC No. 265/07 and he has suffered another heart attack on 21.05.2015, therefore, looking at his medical condition, a lenient view may be taken against him.
5. The Ld. defence counsel has further argued that the benefit of Section 427 Cr.P.C. and Section 428 Cr.P.C., may also be extended to the convict.
6. I have given my considered thoughts to the arguments addressed by the Ld. PP for the CBI and the Ld. defence counsel. This court had also summoned the nominalroll and the medical CBI Vs. Ashok Kr. Sehgal CC No. 253/07 pg 56 of 64 Special Judge, CBI01, Central, Delhi record of the convict. The Jail Superintendent has filed the nominalroll and the photocopies of the medical record of the convict, in compliance of the earlier court orders. The same are also perused.
7. The relevant Sections of the I.P.C., and The Prevention of Corruption Act, 1988, for which the accused has been convicted, are reproduced below, for ready reference : 120B. Punishment of Criminal Conspiracy - (1) whoever is a party to a criminal conspiracy to commit an offence punishable with death, [imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence. (2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.
420. Cheating and dishonestly inducing delivery of property Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and CBI Vs. Ashok Kr. Sehgal CC No. 253/07 pg 57 of 64 Special Judge, CBI01, Central, Delhi shall also be liable to fine.
468. Forgery for purpose of cheating :
Whoever commits forgery, intending that the document or electronic record forged shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
471. Using as genuine a forged document or electronic record :
Whoever fraudulently or dishonestly uses as genuine any document or electronic record which he knows or has reason to believe to be a forged document or electronic record, shall be punished in the same manner as if he had forged such document or electronic record.
13. Criminal misconduct by a public servant - (1) A public servant is said to commit the offence of criminal conduct
(a) If he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification other than legal remuberation as a motive or reward such as is mentioned in Section 7; or
(b) If he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned; or
(c) If he dishonestly or fraudulently misappropriates or otherwise CBI Vs. Ashok Kr. Sehgal CC No. 253/07 pg 58 of 64 Special Judge, CBI01, Central, Delhi converts for his own use any property entrusted to him or under his control as a public servant or allows any other person to do so; or
(d) If he,
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage;
or
(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or
(e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income.
Explanation. For the purposes of this section, "known sources of income" means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant. (2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a terms which shall not less than one year but which may extend to seven years and shall also be liable to fine.
8. In the present case, the allegations proved against the convict are serious in nature. The convict has forged various documents and has cheated his employer, i.e., the Indian Airlines, for a total CBI Vs. Ashok Kr. Sehgal CC No. 253/07 pg 59 of 64 Special Judge, CBI01, Central, Delhi sum of Rs.7520.15p. But, his medical condition is not good. The convict has suffered three heart attacks, in judicial custody, on different dates & has remained admitted at DDU Hospital, for several days. Vide order, dated 09.02.2015, the Hon'ble High Court, had also granted him 'interim bail' for different periods, in Crl. Appeal No. 115/2015 and Crl. Appeal No. 1275/2014, only because of his medical condition.
9. It has been held by the Hon'ble Supreme Court in case titled as "V.K.Verma Vs. CBI", dated 14.02.2014, passed in Criminal Appeal No. 404 of 2014., as under :
15. The appellant is now aged 76. We are informed that he is otherwise not keeping in good health, having had also cardio vascular problems. The offence is of the year 1984. It is almost three decades now. The accused has already undergone physical incarceration for three months and mental incarceration for about thirty years. Whether at this age and stage, it would not be economically wasteful, and a liability to the State to keep the appellant in prison, is the question we have to address. Having given thoughtful consideration to all the aspects of the matter, we are of the view that the facts mentioned above would certainly be special reasons for reducing the substantive sentence but enhancing the fine, while maintaining the conviction.
(emphasis supplied by me) CBI Vs. Ashok Kr. Sehgal CC No. 253/07 pg 60 of 64 Special Judge, CBI01, Central, Delhi
10. It was also held by the Hon'ble High Court of Delhi, in case titled as, "Hari Kishan Bansal Vs. CBI", reported as 2013 Legal Eagle (DHC) 552, as under:
"47. I have carefully examined the submissions. The appellant had attempted to bribe a public servant who, true to his conscience had refused to succumb to the temptation. Several attempts were made by the appellant to bribe the public servant, all of which were successfully resisted by the latter. Having said that, the submissions made by the learned counsel for the appellant on the harshness of the sentence of 4 years' RI cannot also be ignored totally. The appellant has undergone the travails of a trial for about 19 years. He is now close to 80 years without any regular source of income, as stated by his counsel and has not only his wife to look after but also the wife and children of his deceased son. There is also no record of his having committed any offence during this period of 19 years. Having regard to all these mitigating circumstances I reduce the sentence to six months."
(emphasis supplied by me)
11. It was also held by the Hon'ble High Court of Delhi, in case titled as, "Ram Kumar vs. State", reported as 2013 (4) JCC 2821, as under:
3. Since the appellant (Ram Kumar) has opted not to challenge the findings of the Trial Court Under Section 392 IPC and the CBI Vs. Ashok Kr. Sehgal CC No. 253/07 pg 61 of 64 Special Judge, CBI01, Central, Delhi complainant and other prosecution witnesses have attributed specific role to him in snatching the bag containing Rs.45,000/ the findings of the Trial Court on conviction under Section 392 IPC are affirmed. Ram Kumar was sentenced to undergo Rigorous imprisonment for seven years with fine Rs.100/. Nominal roll dated 21.05.2001 reveals that he remained in custody for one year, eight months and two days, as on 18.05.2001, besides earning remission for one month and twenty days. At the time of enlargement on bail and suspension of sentence on 08.10.2001 he had already spent more than two years in custody. He has clean antecedents, is not involved in any other criminal case and has a family with four small children to take care of them. He is suffering from HIV (+ive) and has produced medical documents on record. Taking into consideration the mitigating circumstances, Ram Kumar is sentenced to undergo the period already spent by him in custody in this case.
(emphasis supplied by me)
12. Keeping in view, the entire circumstances of the present case and the law laid down by the Hon'ble Supreme Court & the Hon'ble High Court of Delhi & the fact that the convict is aged about 58 years and is suffering from serious heartailment and is facing trial for the last about 23 years and has not committed any other offence during this entire period of 23 years, a lenient view is taken against him.
CBI Vs. Ashok Kr. Sehgal CC No. 253/07 pg 62 of 64 Special Judge, CBI01, Central, Delhi
13. Accordingly, convict Ashok Kumar Sehgal is hereby sentenced to undergo Rigorous Imprisonment for a term of one year & to pay a fine of Rs.2,000/, for the offence punishable u/s.120B IPC r/w Section 420 IPC & Sec.13(1)(d) punishable under Section 13(2) of the Prevention of Corruption Act. In default of payment of fine, he shall further undergo a term of R.I. for a period of one month.
14. He is further sentenced to undergo Rigorous Imprisonment for a term of two years & to pay a fine of Rs.10,000/ for the offence U/s 420 IPC. In default of payment of fine, he shall further undergo a term of Rigorous Imprisonment for a period of one month.
15. He is further sentenced to undergo a term of Rigorous Imprisonment of two years and to pay a fine of Rs.10,000/, for the offences under Sections 468 & 471 IPC. In default of CBI Vs. Ashok Kr. Sehgal CC No. 253/07 pg 63 of 64 Special Judge, CBI01, Central, Delhi payment of fine, the convict shall further undergo a term of Rigorous Imprisonment for one month.
16. He is further sentenced to undergo Rigorous Imprisonment for a period of one year & to pay a fine of Rs.2,000/ for the offence U/s 13(1) (d) punishable u/s. 13(2) of the Prevention of Corruption Act, 1988. In default of payment of fine, he shall further undergo a term of Rigorous Imprisonment for a period of one month.
17. All the sentences of the convict shall run concurrently. The convict shall also be given the benefit of Sections 427 & 428 Cr.P.C., for the period already undergone by him, during the trial. It is ordered accordingly.
Announced in open Court
on 01 day of June, 2015 BRIJESH KUMAR GARG
st
Special Judge:CBI01
Central District. Delhi
CBI Vs. Ashok Kr. Sehgal CC No. 253/07 pg 64 of 64 Special Judge, CBI01, Central, Delhi