Delhi District Court
Cbi vs Devendra Singh Rawat & Others on 15 November, 2014
CBI Case No. 45/11
IN THE COURT OF SHRI ALOK AGARWAL
SPECIAL JUDGE, (PC ACT) (CBI),
DISTRICT COURTS(SW), DWARKA, NEW DELHI
In the matter of :
CBI Case No. : 45/11
RC No. : 6E/2002/EOWI/CBI/New Delhi
CBI versus Devendra Singh Rawat & Others
Date of Institution : 31.7.2004
Date on which Order on Charge announced : 15.11.2014
Order on Charge
1.M/s PNB Housing Finance Ltd. ( herein after referred to as PNBHFL) is a 100% subsidiary of Punjab National Bank whose main function is to advance housing loans to individuals and also, to accept fixed deposit from the parties. Shri Devendra Singh Rawat ( A1) was, during the years 20012002, posted with PNBHFL as Asstt. Vice President and was responsible for sanctioning housing loan to the applicants. As such, he was a public servant within the meaning of the term in Section 2 ( c) of the Prevention of Corruption Act, 1988. He has been charge sheeted in this case along with seven other persons on allegations of criminal misconduct and entered into a conspiracy with co accused persons to defraud/ cheat PNBHFL by using several forged documents.
2. The investigation of this case commenced with registration of an FIR no. RCE/2002 /EOWI/CBI/New Delhi dated 13.06.2002 based on 'an information received from a reliable source'. The investigation was entrusted to the IO and Shri N.N. Singh , Addl. SP CBI EOWI New Delhi.
3. The brief facts of the case, as disclosed in the chargesheet, are that in the year 20002001, M/s Sewa Builders & CBI Vs. Devendra Singh Rawat & Ors. Page 1 of 24 D.O.O. 15.11.2014 CBI Case No. 45/11 Construction, whose owner/Proprietor was Vinod Kumar Chadda (A3), constructed 56 flats on the plot No. DI & DII, Dilshad Colony, Delhi. The said plot No.D1 was owned by Smt. Nirmal Chadda w/o of Vinod Kumar Chadda(A3) and plot No. DII was owned by Vinod Kumar Chadda(A3).
4. During August, 2001, accused Ram Mani Pandey(A2), claiming to be Chief Editor of 'Vigilance to City Crime ( in short VCC), New Delhi' contacted accused Vinod Kumar Chadda(A3) through a property dealer i.e. accused Sundaresan Vasu @ Sunder(A7) for purchase of flats and initially booked 5 flats with M/s Sewa Builders & Construction. At the asking of accused Ram Mani Panday(A2), accused Sundaresan Vasu @ Sunder(A7) arranged 5 Housing Loans in the name of (i)Ram Mani Panday, (ii)Mrs. Sanju Panday, (iii) Arvind Kumar, (iv) Ram Bishal Mishra & (v) Sushil Kumar @ Rs.9 lakhs each total amounting to Rs.45 lakhs from PNB Housing Finance Ltd., Noida by using the name of Mr. Edison, an DMA of PNBHFL. Mrs. Sanju Pandey is the wife of Ram Mani Panday, Arvind Kumar is the son, Ram Bishal Mishra is his brother in law and Sushil Kumar is one of his employees. The said five housing loans were sanctioned by accused Devendra Singh Rawat who was posed as Branch Incharge of the said branch of PNBHFL, without ascertaining the genuineness of the documents submitted for the said loans.
5. Later on, accused Ram Mani Pandey(A2) also got sanctioned housing loan for 27 other flats in the name of different people who were shown as employees of 'Vigilance to City Crimes' by submitting forged Statements of Salary, which were issued by accused Ram Mani Panday(A2) under his signatures in a different style, purporting to be of the Deputy Director(Admn.), Vigilance to City Crimes, in case of all loan applications, which have mention of their age, father's name, address, designation etc. It is alleged that he used to CBI Vs. Devendra Singh Rawat & Ors. Page 2 of 24 D.O.O. 15.11.2014 CBI Case No. 45/11 give advertisements in daily newspapers for recruitment of Crime Reporters and used to get the bio data alongwith the photographs of the unemployed candidates. He used the names and photographs of those candidates in these loan applications while applying for house loans in the name of different borrowers. Accused Ram Mani Panday, also signed the various loan documents in different styles of signatures in the name of alleged borrowers.
6. It is further alleged that Ram Niwas Dhuriya said to be the President of Indian Association of Investigative Reporters , prepared certain forged notices and resolutions to show that the General Body Meeting of the Association was held on 10.01.2001 and was attended by 65 members. They all took life membership of the Association by contributing a sum of Rs. 2,50,000/ each. Accordingly, a sum of Rs. 1,65,50,000/ was shown to be collected in cash. The Resolution mentions that out of that amount, a sum of Rs. 81,25,000/ was paid to Smt. Nirmal Chadda W/o Vinod Chadda for the sale of plot no. D1 and the property constructed thereon. Similar amount of Rs. 81,25,000/ was paid to Shri Vinod Chadda as sale consideration of plot No. DII. The Resolution contains signatures of Ram Niwas Dhuriya, Nirmal Kumar Chadda, V.K. Chadda and some others on behalf of builder. However, GEQD opinion obtained by the IO is to the effect that those signatures have not been put bySmt. Nirmal Chadda and the other persons from the builder side. There is no opinion expressed by GEQD on signature of V.K. Chadda. The allegations, therefore, is that the Resolution is a forged one and therefore , all this story of collecting amounts from 65 reporters and handing over the same to the builder is a fabricated one.
7. It is further alleged that accused V. K. Chadda in collusion with coaccused Ram Mani Panday executed/signed 32 Agreements to Sell and 13 Finishing Agreements for all 32 flats with the CBI Vs. Devendra Singh Rawat & Ors. Page 3 of 24 D.O.O. 15.11.2014 CBI Case No. 45/11 fictitious/nonexisting borrowers and accused Ajay Upadhyay signed as one of witnesses on some of the sale deeds and on 19 Finishing Agreements without knowing the vendees. Most of the respective loan documents i.e the application for loan, salary and testimonial certificates and finishing agreements and some of sale deeds have been signed by accused Ram Mani Pandey in the name of the buyers.
8. It is alleged that for the purpose of issuing cheques for repayment of housing loans in the name of 32 borrowers, accused Ram Mani Panday(A2) opened various SB Accounts in his name or in joint accounts with different banks only in the month of SeptemberOctober, 2001. He issued 293 post dated cheques for repayment of PreEMI interest /EMI against all the 32 house loans were issued by using different bank accounts for making payments of EMI to PNB HFL Noida.
9. It is alleged that accused Devinder Singh Rawat(A1) while sanctioning the above said housing loans willfully did not follow the rules and regulations of the bank and by violating the credit policy of the bank, sanctioned the above said 32 housing loans without ascertaining the genuineness of the submitted documents and did not make any verification regarding residential address, age, income of the applicants and also without verification of employment details on form No. 50. It is alleged that in utter violation of rules and procedures by misusing his official position as public servant, accused Devinder Singh Rawat disbursed 32 individual housing loans in the name of different employees of Vigilance to City Crimes totally amounting to Rs.288 lacs. The said amount was disbursed by him by issuing cheques in favour of M/s Sewa Builder and the said cheques were deposited in the account of accused V. K. Chadda & his wife Nirmal Chadda.
10. It is alleged that in the office of SubRegistrar, Seelampur, Delhi accused Ajay Upadhyay signed as witness on the sale deeds of CBI Vs. Devendra Singh Rawat & Ors. Page 4 of 24 D.O.O. 15.11.2014 CBI Case No. 45/11 said flats and handed over the keys of 32 flats to accused Ram Mani Panday, in the presence of one Sukhdev Singh @ Soni.
11. It is also alleged that when the monthly installments were not received from the concerned borrowers by the PNB HFL, the EMI cheques having bounced, letters/notices were issued in the names of borrowers, which were returned undelivered with the remark that the persons concerned were not residing at the given addresses. Thus the whole of the amount of one of the loan amount against 32 flats at the rate of Rs. 9 lacs each, totally amounting to Rs. 288 lacs become unrecoverable.
12. It is alleged that all the borrowers and guarantors of the said flats were found nonexistent at the addresses given in the loan agreements except accused Ram Mani Panday and accused Sanju Panday, who were found in the possession of all the said flats.
13. It is further alleged that GEQD opinion has also confirmed the fact that the signatures of most of the alleged borrowers on their respective loan documents were made by accused Ram Mani Pandey. It is also alleged that accused Sanju Pandey, who also applied for housing loan to PNB Housing Finance Ltd., Noida, submitted forged salary statement alongwith his loan application showing her designation as Managing Editor in Vigilance to City Crimes and fraudulently availed loan, whereas she was house wife.
14. It is stated that the sanction under Section 19 of the Prevention of Corruption Act for the prosecution of accused Devendra Singh Rawat had been granted by the Competent Authority i.e. the Managing Director of PNB HFL on 30.07.2004.
15. It is, therefore, alleged that all accused persons, conspired with each other, cheated and caused pecuniary gains to themselves and corresponding wrongful loss to the Public Sector Bank, i.e. PNB Housing Finance Ltd., Noida. That the aforesaid acts of omission CBI Vs. Devendra Singh Rawat & Ors. Page 5 of 24 D.O.O. 15.11.2014 CBI Case No. 45/11 and commission of the accused persons, namely, Devendra Singh Rawat, the then Asstt. Vice President, Ram Mani Panday, Vinod Kumar Chadda, Sundaresan Vasu @ Sunder, Ajay Upadhyay, Ram Niwas Dhuriya and Sanju Panday constitute the offences, punishable under section 120B IPC read with Section 419, 420, 467, 468, 471 IPC & section 13(2) read with 13(1)(d) of Prevention of Corruption Act, 1988. The acts of accused persons, namely, Ram Mani Panday, Vinod Kumar Chadda, Ajay Upadhyay, Sanju Pandey & Ram Niwas Dhuriya also constitute substantive offences punishable under Sections 420, 467, 468 & 471 IPC.
16. After filing of the charge sheet in the court, accused Sundaresan Vasu absconded and was declared a Proclaimed Offender on 31.03.2014 after a proclamation under Section.82Cr.P.C was passed against him on 23.10.2013.
17. I have heard Sh. Akhilesh Kumar, Ld. Sr. Public Prosecutor appearing on behalf of CBI and accused Ram Mani Panday in person and Ld. Counsel appearing for other accused persons on several successive dates and have gone through voluminous written arguments filed by both sides.
18. On behalf of the prosecution, it is stated that prima facie, a strong case is made out against all the accused persons, as alleged in the charge sheet. It has, therefore, been contended by the prosecution that charge against the accused persons be framed. The defence, on the other hand, has stated that there is no material against the accused persons to show the alleged commission of offence of criminal conspiracy and of cheating, forgery of valuable security and of using of the forged documents as genuine by the accused persons, while availing the aforesaid housing loan from the PNB Housing Finance Ltd. It is further contended on behalf of the defence that prima facie there is nothing on record to frame the charge against the accused persons.
CBI Vs. Devendra Singh Rawat & Ors. Page 6 of 24 D.O.O. 15.11.2014 CBI Case No. 45/11 Contentions of the accused persons.
19. Elaborate arguments have been addressed opposing framing of charge, by the accused persons led by the accused No. 2 Ram Mani Pandey, who argued the case in person. The Ld. counsels appearing for the other accused persons have also individually addressed the arguments.
20. I first propose to examine the legal and technical objections raised by the accused persons to the jurisdiction of CBI to investigate the matter, to register the case and investigate the matter and of the court to try the case. Registration of FIR in the manner it is done is also challenged on the ground that it has not been registered on the 'first information' received by the investigating agency about commission of the offence. The main contentions, in this regard, are as follows:
(i).The offence of 'misconduct' having been allegedly committed at Noida, UP, CBI could not have registered the case in Delhi.
(ii). CBI has not taken consent of the concerned State Government i.e. Government of UP, before conducting the raids, etc. at Noida, which is mandatory precondition under section 6 of Delhi Special Police Establishment Act.
(iii). A Special Court at Delhi has no jurisdiction to try this case since both the sections 3 & 4 of the Prevention of Corruption Act, 1988, empower only the Special Judge, who is appointed for 'the area within which the offence of misconduct has been committed'.
(iv). As per section 4 (2) of Cr. PC, when a separate enactment provides for a particular manner or place of investigating or trying the offence defined under the said enactment, the manner and place for investigation or trial of such offence has to be governed by the said enactment and not by the general provisions of Cr. PC.
(v). The accused Ram Mani Pandey(A2) had first filed a complaint CBI Vs. Devendra Singh Rawat & Ors. Page 7 of 24 D.O.O. 15.11.2014 CBI Case No. 45/11 before the CBI and also to the PNB Housing Finance Limited, with regard to the same offence, committed by the officials/officers of PNBHFL and of the Sub Registrar's office, etc. on which no action was taken. Any subsequent information, in this regard, cannot be as FIR and therefore, the chargesheet filed is baseless and malafide.
(vi). The whole approach of the investigating agency is malafide since the role of several other bank officers and the SubRegistrar, deed writer, have been involved in committing the offence has not been investigated.
21. Ld. Sr. PP appearing for CBI has strongly opposed these contentions and argued in defence of jurisdiction of both CBI and the court.
22. I find from the record that this is not first time that the above contentions have been raised by the accused persons. The charge sheet was filed in this court on 31.7.2004 and matter was listed for consideration of cognizance. However, before cognizance could be taken, accused Ram Mani Pandey(A2) filed three applications challenging the jurisdiction of the Court and of the CBI, invoking the same provision under section 3 & 4 of the Prevention of Corruption Act, 1988, Section 4(2), 177 & 154 Cr. PC and Section 5 & 6 of the Delhi Special Police Establishment Act, 1946. The said applications were dismissed by my Ld. Predecessor vice order dated 30.1.2006. Vide order dated 4.7.2008, my ld. predecessor took the cognizance of the offences punishable under section 120B, 419, 420, 467, 468, 471 IPC and under section 13(2) r/w 13(1) (d) of the Prevention of Corruption Act, 1948. It also appears that accused persons filed Crl. Misc. petition before the Hon'ble High Court against the order dated 30.1.2006 which were later permitted to be withdrawn with liberty to raise the same contentions before the Trial Court at appropriate stage.
23. Thereafter, after the accused persons were summoned, CBI Vs. Devendra Singh Rawat & Ors. Page 8 of 24 D.O.O. 15.11.2014 CBI Case No. 45/11 they filed individual applications once again, challenging the jurisdiction of CBI and of the Court. The said applications were heard and came to be dismissed by an order of my Ld. Predecessor dated 5.2.2011. The matter was then listed for arguments on charge. However, on the next date i.e. 29.3.2011, the accused Ram Mani Pandey(A2) informed the court that he had filed a petition bearing No. 390/11 titled as Ram Mani Pandey Vs. CBI, before the Hon'ble High Court assailing the order dated 5.2.2011. The matter was then adjourned by my ld. predecessor observing that the jurisdiction of the court was under challenge before the Hon'ble High Court. Later on, the matter was transferred from Rohini Court Complex to Dwarka Court Complex.
24. When the case was being heard for the purpose of charge and was listed for orders on 17.3.2012, accused Ram Mani Pandey(A2) filed another application under section 6 of Delhi Special Police Establishment Act, 1946 r/w section 4(2) of the Prevention of Corruption Act, 1988 r/w section 4(2) Cr. PC. and other accused persons also individually filed elaborate written arguments, once again raising the question of jurisdiction.
25. On 23.4.2013, it is expressly recorded in the order sheet that accused Ram Mani Pandey submitted that in the petition filed by him against the order dated 5.2.2011, the Hon'ble High Court had left the question of jurisdiction open to be addressed again at the stage of charge. He was asked to place the certified copy of the order on record.
26. Thereafter, arguments have been addressed on various successive dates. No copy of the order, as mentioned by the accused Ram Mani Pandey(A2), has been filed on record till date.
27. In the wake of the contention of the Ld. Sr. PP for CBI that no such order was actually passed by the Hon'ble High Court, on browsing the official website of the High Court of Delhi, it was found CBI Vs. Devendra Singh Rawat & Ors. Page 9 of 24 D.O.O. 15.11.2014 CBI Case No. 45/11 that WP Crl. 390/2011 titled as Ram Mani Pandey Vs. CBI, was dismissed for nonprosecution on 4.1.2012, thus exposing the deliberate false statement made by A2 in the court on 23.04.2013. The order dated 05.02.2011 laying the issue of jurisdiction to rest is therefore final and binding.
28. Even otherwise, the allegations in this case pertain to misconduct by a public servant for abusing his official position for obtaining not for himself, but for some other person. Pecuniary advantage in terms of housing loans, have been granted to A2, though in fictitious names at Delhi and property in the form of 32 flats constructed on 2 plots which are situated in Delhi. Sale Deeds for these flats are alleged to have been fraudulently registered and advantage in terms of the property been delivered to A2 at Delhi. Only because the public servant being at that time himself located at Noida, does not, in my view, bar the jurisdiction of the courts at Delhi.
29. There is no dispute with the proposition that in a case under the Prevention of Corruption Act, even though, criminal conspiracy and acts of cheating and forgery etc. maybe parts of the allegations, the jurisdiction for conducting trial would vest in the courts situated at place where the offence under the PC Act is committed. The question would therefore be whether any part of the offence of "Misconduct" under section 13 (1) (d) of the act was committed in Delhi.
30. In the case of CBI Vs. Brij Bhushan Prasad, (2001) 9 SCC 432 page 444, which is heavily relied upon by the accused persons themselves. It has been held in paras 34 & 35 as follows:
"34. What is the main offence in the charges involved in all these 36 cases? It is undisputed that the main offence is under Section 13 (1) (c) and also Section 13 (1) (d) of the PC Act. The first among them is described thus:
CBI Vs. Devendra Singh Rawat & Ors. Page 10 of 24 D.O.O. 15.11.2014 CBI Case No. 45/11 "13. (1) A public servant is said to commit the offence of criminal misconduct, ...
35. We have no doubt in our mind that the hub of the act envisaged in the first of those two offences is "dishonestly or fraudulently misappropriates". Similarly, the hinge of the act envisaged in the second section is "obtains" for himself or for any other person, any valuable thing or pecuniary advantage by corrupt or illegal means."
31. In case the 'pecuniary advantage' and 'valuable thing' have been obtained for some other person, there can be no doubt that the place where they are so obtained would govern the territorial jurisdiction both for the purpose of investigation and for trial. The jurisdiction of CBI to investigate the matter or of the Special Court at Delhi to try the case cannot therefore be challenged.
32. Another contention of the accused persons, which was not specifically dealt with in the order dated 5.2.2011 is with regard to obtaining the consent of the State Government under section 6 of the Delhi Special Police Establishment Act. Ld. Sr. PP has filed copy of notifications dated 2.8.90 issued by the Central Government under section 5 (1) r/w section 6 of Delhi Special Police Establishment Act and notifications dated 15.6.1989 issued by the Government of UP under section 6 of the Act extending the powers and jurisdiction of members of DSPE Act to the whole of the State of UP for investigation of offence under the prevention of corruption Act 1988. The notifications under section 6 of DSPE Act only exclude investigation being taken up without the prior permission of the State Government in case relating to a public servant under the control of State Government.
33. The public servant, involved in the present case, is Vice President, PNBHFL which is a 100% subsidiary of PNB, a Government Undertaking and therefore, he cannot claim exclusion on this ground.
CBI Vs. Devendra Singh Rawat & Ors. Page 11 of 24 D.O.O. 15.11.2014 CBI Case No. 45/11
34. The above answers the contentions no. (i) (iv) raised by the accused persons.
35. The contention no. (v) relates to the registration of the FIR. A2 has claimed that he is infact the whistle blower and had first informed the CBI as well as the concerned department with regard to the fraud played by the officers of PNBHFL in collusion with the builder and others. He has argued that his complaint dated 20.11.01 to the CBI details all the facts, receipt of which has been acknowledged by the CBI more than once at different fora. He has contended that his complaint discloses cognizable offence and it was mandatory for the CBI to register a case on the basis thereof. He alleges that CBI officer had with malafide intention concealed his complaint from the court and has registered the present case seven months thereafter and that too, on the basis of a ' source information' . It is vehemently argued by the accused that only in order to file a false case against him , the CBI has wrongly assumed jurisdiction , manipulated facts and has filed the false case in a wrong forum. He has relied upon the language of Section 154,156,157 Cr.P.C. and various judgments to emphasize the point that the investigating agency is under obligation to record an FIR immediately on receipt of any information which prima facie discloses a cognizable offence. He has sought to stretch the legal argument to contend that no prosecution can be sustained if it is based on an FIR which was not the information received first in time.
36. The proposition that the officer Incharge of the Police Station is bound to register an FIR on receipt of any information of commission of cognizable offence, cannot be disputed. This flows directly from the plain language of the Section 154 and has been the consistent view of the Hon'ble Supreme Court, the most notable judgments in this regard being State of Haryana Vs. Bhajan Lal , AIR 1992 SC 604, CBI Vs. Devendra Singh Rawat & Ors. Page 12 of 24 D.O.O. 15.11.2014 CBI Case No. 45/11 Ramesh Kumar Vs. State 2006 SC 1322, Prakash Singh Badal Vs. State of Punjab AIR 2007 SC 1274 and latest one i.e. Lalita Kumari Vs. Govt. of UP reported as 2013 AIR SCW 6386 ( Constitution Bench).
37. However, so far as cases under the Prevention of Corruption Act are concerned, it is also the consistent view of the Hon'ble Supreme Court that before registration of a case under the provision of this Act against a public servant, some kind of preliminary enquiry should necessarily be conducted by the Investigating Agency. (See P. Sirajjuddin Vs. State of Madras, reported as 1970 (1) SCC 595). This position has also been reaffirmed in the latest constitution bench judgment of Lalita Kumari ( Supra).
38. To quote from P Sirajuddin (supra):
Before a public servant, whatever be his status, is publicly charged with acts of dishonesty which amounts to serious misdemeanour or misconduct of the type alleged in this case and a first information is lodged against him, there must be some suitable preliminary inquiry into the allegations by a responsible officer.The lodging of such a report against a person, especially one who like the appellant occupied the top position in a department, even if baseless, would do incalculable harm not only to the officer in particular but to the department he belonged to, in general
39. In Lalita Kumari (supra), the Hon'ble Constitution bench of the Supreme Court of India in its conclusions/directions has emphasised the mandatory nature of the requirement of registration of FIR immediately on receipt of information disclosing a cognizable offence but has recognised the exceptions to the rule in the following words:
(vi) As to what type and in which cases preliminary enquiry is to be CBI Vs. Devendra Singh Rawat & Ors. Page 13 of 24 D.O.O. 15.11.2014 CBI Case No. 45/11 conducted will depend on the facts and circumstances of each case.
The category of cases in which the preliminary inquiry may be made are as under:
(a) Matrimonial disputes/family disputes
(b) Commercial offences
(c) medical negligence cases
(d) corruption cases
(e) cases where there is abnormal delay/latches in initiating criminal prosecution for example, over three months delay in reporting the matter without satisfactorily explaining the reason for delay.
40. Thus, it has always been recognised by the courts that the rule of mandatory registration of the F I R does not apply to cases under the Prevention of Corruption Act. It is always desirable that some preliminary inquiry is conducted so that the reputation of honest officers who may otherwise have displeased some people, is not harmed unless there is some prima facie reason to believe the allegations against them.
41. Moreover, I have perused the complaint made by A2 Ram Mani Pandey addressed to the Director, Central Bureau of Investigation on 20 November 2001, since a copy of the same is on record. He has alleged frauds committed by bank officials including A1 in collusion with the builder VK Chadha in granting of housing loans in the name of fictitious persons by opening fictitious bank accounts and by preparing forged cheques. The methodology used by the said builder and the bank officials, as suggested by Ram Mani Pandey is that stationary of the VCC was stolen by somebody and salary certificates etc. were fabricated in names of fictitious persons loans were disbursed to 32 such persons and forged security cheques were given for EMI's. he also alleged that in fact, the stated 32 flats are nonexistent and therefore, fictitious sale deeds have been executed by the sub registrar and his staff. The complaint has CBI Vs. Devendra Singh Rawat & Ors. Page 14 of 24 D.O.O. 15.11.2014 CBI Case No. 45/11 been signed by Ram Mani Pandey in his capacity as Chief editor, Vigilance to City Crimes.
42. It is worth noting here that these allegations against the builder and the bank officials have been found to be prima facie substantiated during the investigation subsequently conducted by CBI. However, the allegation of the VCC stationary being misused was found to be false and it is on the other hand alleged that all the forgery and fabrication as mentioned by Ram Mani Pandey has actually been perpetrated by him.
43. Moreover, It is also record that on receipt of another complaint from Ram Mani Pandey, the PNBHL got an internal investigation conducted by one of its officers Mr MC Gupta. A copy of the report filed by Mr MC Gupta on 9th of February 2002 is on record. The complaint made by Ram Mani Pandey to the PNBHL is not available on record but, the report indicates that the contents of this complaint were totally different and in fact, contradictory to the complaint made to the CBI. It appears from the report that in his complaint to the bank, the accused A1 has owned up the borrowers as employees of VCC and has raised a grievance that the bank officials and the builders in collusion, sold them inferior quality flats for a very high price. He seems to have requested the bank to conduct an enquiry and also in the meantime, to stop encashment of the EMI cheques.
44. After conducting investigation, Shri MC Gupta has inter alia given the following findings:
(i) the addresses of 32 applicants were not traceable thereby indicating that they were not regular employees of VCC.
(ii) Ram Mani Pandey himself could not be contacted despite all efforts.
(iii) Ram Mani Pandey has given salary certificates and letter of authority for recovery of EMI and has issued identity cards of VCC to CBI Vs. Devendra Singh Rawat & Ors. Page 15 of 24 D.O.O. 15.11.2014 CBI Case No. 45/11 all the applicants.
(iv) Ram Mani Pandey was himself in possession of about 57% of the total area of plots DI and DII which is equivalent to the total area of the 32 flats for which housing loans have been fraudulently obtained. He has opened offices of his various publications and has started calling the area as 'Media Enclave ', displaying huge neon sign boards.
(v) Ram Mani Pandey had also taken various loans from other banks like the American Express bank and Bank of Punjab, New Delhi employing similar strategies.
45. It has been recommended by Shri MC Gupta that Shri Pandey being an outside party to the bank and because bank funds to the tune of Rs. 2.70 crores being involved, his role may be investigated by CBI/Police.
46. The above would clearly indicate that the accused Ram Mani Pandey has been making complaints to various authorities taking different and in fact, contradictory stands around the same period of time that is, towards the end of the year 2001. Shri MC Gupta has observed in his report that the complaints have been made at a time when the cheques for EMIs started getting dishonoured, only in order to avoid criminal action U/S138, Negotiable Instruments Act.
47. Yet another example of his taking irreconcilable stands is in the court itself. He has filed a complaint case titled as "Ram Mani Pandey versus NK Sikri and others" which is being taken up for hearing along with the present case. In the said case, he has staked claim to the ownership of the property bearing No. DI and DII, Dilshad Extn. Shahdara on the basis of an Agreement to Sell dated 22.12.2001, a money receipt dated 22.12.2001 showing receipt of an amount of Rs. 15 lacs and a General Power of Attorney dated 21.12.2001, all executed in his favour by one Shri Krishan Gupta describing himself as attorney of Sh. V.K. Chadda. Now this is during CBI Vs. Devendra Singh Rawat & Ors. Page 16 of 24 D.O.O. 15.11.2014 CBI Case No. 45/11 the period, he states that he was pursuing his complaint to the CBI in which, he had made serious allegations of forgery and fraud against V.K. Chadda including the allegations that V.K. Chadda had already sold this property to some fictious persons, in collusion with the bank officials. In fact, this averment by itself would give an impression that it is he who in collusion with VK Chadha has himself purchased the plots from him and then, fraudulently got it financed from PNBHFL in fictitious names by using forged documents, issuing forged cheques for EMI which would never be honoured. This exactly, is the case of the prosecution against him.
48. In view of the above, the accused Ram Mani Pandey cannot be heard to raise a grievance that the F I R should have been registered on the basis of his complaint which, he has himself contradicted in his other complaints, and not on the basis of a preliminary enquiry or of "source information", as stated to be done by the CBI especially, when there is a judicially recognised relaxation in the rule of immediate registration of F I R in the cases of this nature.
49. Next comes his contention (vi) that some of the other bank officials , the sub registrar and the deed writer etc have not been chargesheeted.
50. On going through the chargesheet, the statements of witnesses recorded by the CBI and the documents filed by CBI, I do not find sufficient material to proceed against the other officers of the PNBHFL. The role of one of the officers namely Ms Anila Singh was investigated by Shri MC Gupta and he has observed in his report that Ms Anila Singh was new to the organisation having joined as a Probationary Officer in the year 2001 itself and that she trusted the wisdom of and acted on the instructions of her senior Devendra Singh Rawat. There is no other evidence against her on record as of now and she cannot be summoned to face trial in a criminal case only on the basis of an assumption that she might have assisted Shri DS Rawat willfully, in participation in a criminal conspiracy with CBI Vs. Devendra Singh Rawat & Ors. Page 17 of 24 D.O.O. 15.11.2014 CBI Case No. 45/11 him.
51. So far as the sub registrar and the deed writer are concerned, the accused persons have argued that if the case of the prosecution is that any person forged the signatures of the buyers on the 32 sale deeds also, the deed writer and the sub registrar have to be presumed to be in connivance with him because it is not otherwise possible for a person to appear before the sub registrar or the deed writer 32 times with different identities.
52. However, on perusing the sale deeds I find that most of the sale deeds registered by him have been signed only on behalf of the vendor, and not by the purchaser. It is also a matter of record that till 1st of November 2001, it was not necessary in the Union Territory of Delhi for a purchaser to be present at the office of the registrar & the sale deed. It is only with effect from the above date that it has become mandatory for both buyer and seller to affix their photographs and signatures/thumb impressions before the registrar after establishing their identities at the time of registration of the sale deed. In the circumstances, it cannot be said on the basis of the evidence so far on record that the concerned sub registrar or the deed writer were parties to the conspiracy.
53. It may however be clarified that the above observations have been made on the basis of the documents and the statements under section 161 CrPC recorded by the CBI and sent up to the court. In case any evidence comes up against these persons or any other persons during the trial, the provision of section 319 of the CrPC can be made use of four summoning them.
Contentions on merits
54. On merits, accused Ram Mani Panday has only argued that this whole story of the prosecution is false since the 32 flats alleged by the prosecution to have been sold, could not have been and infact were not , constructed on the plot No. DI and DII. He has CBI Vs. Devendra Singh Rawat & Ors. Page 18 of 24 D.O.O. 15.11.2014 CBI Case No. 45/11 relied upon a reply given by MCD to CBI to this effect which is the part of the document filed by CBI ( D99).
55. His second argument is that PNB HFL had filed 32 suits for recovery of loan amount against the said borrowers including himself. He was one of the defendants in all the suits. However, all the suits were dismissed by Ld. Addition District Judge vide its judgments dated 13.05.2010 on the ground that it is the bank officers themselves who had committed the fraud and therefore, the amounts cannot be recovered from the borrowers.
56. A2 Ram Mani Pandey has not raised any other contention on merits of the case but has made an assertion that he was never a party to any loan from any bank with regard to these flats. He has also asserted that he never worked as 'Deputy Director (Administration)' with VCC and that the actual Deputy Director who had signed the salary certificates etc. has not been interrogated by the CBI.
57. A1 Devendra Singh Rawat has argued that subsequently the bank has taken possession of and sold out all flats and has recovered all its dues. As on date, there is no loss to the bank. He has also contended that there is no allegation that he had obtained any pecuniary benefit for himself. He has contended that he had not done anything intentionally. He had only disbursed the loan to the persons who came for the same by deposing trust in them. At the most his action could be termed as 'Violation of some procedures of the bank' but no criminal intention can be attributed to him.
58. On behalf of accused No. 3 and 4 i.e. Vinod Kumar Chadda and Ajay Upadhyay, it has been argued that they had no role to play in the conspiracy and that they had only executed the sale deeds in favour of the buyers in respect of whom, payments had been made to them by PNB HFL. Since there was no requirement of the buyer to appear before the Sub Registrar and sign the sale deed, they had not CBI Vs. Devendra Singh Rawat & Ors. Page 19 of 24 D.O.O. 15.11.2014 CBI Case No. 45/11 personally met the buyers and had just signed the sale deeds and finishing agreements on presentation of documents to them receipt of the sale price from the bank.
59. It has been contended on behalf of accused no. 5 Ram Niwas Dhuriya that the only allegation against him is that he collected a sum of Rs. 1,62,50,000/ from 65 Journalists. However, as per the Resolution dated 10.01.2001 itself mentions that the amount was not kept by him but was handed over to Shri V.K. Chadda and Nirmal Chadda. He has sought to explain that initially both plot No. DI and DII were purchased by the said 65 Journalists in the name of Indian Association of Investigative Reporters from V.K. Chadda but the said deal was later on cancelled and the money was returned to the said Journalists.
60. Accused no. 6 Sanju Pandey has argued through her counsel that she had just applied for one flat in her name and after sanction of the loan from PNB HFL, sale deed was executed in her favour. She is not aware of any other transactions in this regard. She has asserted that she has no connection with VCC and has never worked with them.
61. As already stated here in before, all the above accused persons have also adopted the legal objections raised by accused Ram Mani Pandey in their oral arguments as well as in written arguments filed by each of them.
62. The legal position with regard to the degree of application of mind to the facts and evidence produced by the investigating agency, at the stage of charge is well settled. In Niranjan Singh Karam Singh Punjabi, Advocate vs. Jitender Bhimraj Bijjaya and Ors. MANU/SC/0337/1990; Union of India vs. Prafulla Kumar Samal and Anr. MANU/SC/0414/1978; Dilawar Balu Kurane vs. State of Maharashtra MANU/SC/0005/2002; Soma Chakravarty vs. State through CBI MANU/SC/2283/2007; Om Wati CBI Vs. Devendra Singh Rawat & Ors. Page 20 of 24 D.O.O. 15.11.2014 CBI Case No. 45/11 (Smt) and Anr. vs. State through Delhi Admin. and Ors. MANU/SC/0178/2001; State of Orissa vs. Debendra Nath Padhi MANU/SC/1010/2004; Neeraj Gupta & Ors. vs. CBI 2007 V Ad(Cri.) (DHC) 517, the court has repeatedly held that the Court at the stage of framing charges has undoubted power to sift and weigh the evidence but it is for the limited purpose of finding out whether or not a prima facie case against the accused persons has been made out.
63. It is also settled by way of various judicial pronouncements that where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained, the Court will be fully justified in framing a charge and proceeding with the trial. The test to determine a prima facie case would naturally depend upon the facts of each case and that it is difficult to lay down a rule of universal application.
64. After perusing the evidence putforth by the Investigating Agency in the form of documents and statements under Section 161 Cr.P.C., vizaviz the arguments raised on behalf of each of the accused, my opinion on the role of each of the accused persons is as follows:
65. A1 Devendra Singh Rawat He being the incharge of the branch responsible for disbursing loan, is prima facie shown to have disbursed the loan in this case without verifying any document submitted by the alleged borrowers, without even having ascertained whether the said borrowers ever existed or whether they had any connection with Vigilance to City Crime who had issued certificates verifying their identities. It is also alleged that he had accepted 293 post dated cheques for EMI repayment and did not even bother to notice that the cheques were issued in the name of different borrowers from same saving bank accounts. This cannot be termed as ' mere negligence' or ' mere breech of some procedure or guidelines'. In my opinion, this is sufficient at this stage to CBI Vs. Devendra Singh Rawat & Ors. Page 21 of 24 D.O.O. 15.11.2014 CBI Case No. 45/11 presume that he was a part of the conspiracy and had abused his official position in order to pass on a huge pecuniary benefit to the builder and to Ram Mani Pandey. I am, therefore, of the view that there is sufficient material at this stage to charge him under Section 120B IPC r/w Sections 420,467,468 and 471 IPC and under Section 13 (2) r/w 13 (1) (d) of the Prevention of Corruption Act.
66. A2 Ram Mani Panday As per the GEQD report, the signatures and handwriting of accused Ram Mani Pandey obtained during investigation for the purpose of comparison, tally with the signature of applicants/borrowers appearing on most of the 32 application forms for loan and finishing agreements. His signatures are also stated to be tallying with the signatures purported to be those of Deputy Director (Admn.) VCC, issuing identity cards to the borrowers certifying their salary statements as VCC employees. This prima facie runs into the teeth of his contention that the stationery of VCC was stolen by someone and the certificates etc. are forged one.
67. Moreover, he was himself found in possession of whole of the area which is stated to be sold to the 32 borrowers. He has himself asserted that infact the said property has been purchased by him.
Then, the findings of the learned Additional District Judge on the question of recovery of the loan amount have in my view, no bearing on the allegations against him in this case. There is, therefore, enough material to presume at this stage that it is he who had set up the said fictitious persons, forged documents in their favour, obtained loan from PNBHFL in their favour and finally, took the possession of whole area in their names. There is enough material to presume that he had done all this in conspiracy with the builders as well as the bank officers. His signatures are verified to be tallying with those of the buyers shown in some of the sale deeds and on the finishing agreements. In my considered opinion, therefore, he is CBI Vs. Devendra Singh Rawat & Ors. Page 22 of 24 D.O.O. 15.11.2014 CBI Case No. 45/11 liable to be charged under Section 120B r/w Sections 420,467,468 and 471 IPC and section13(2) read with section 13(1)(d) of the PC Act and also, for substantive offences under Section 467,468,471,419 and 420 IPC.
68. A3 Vinod Kumar Chadda As per the allegations in the charge sheet, accused V.K. Chadda is the builder who had signed the sale deeds and finishing agreements in favour of non existing buyers. Despite this, as per the statement under Section 161 Cr.P.C., he handed over the keys of all the constructed flats to Ram Mani Pandey himself. He is the one who has received the total amount of Rs. 288.80 lacs from PNBHFL in the name of loans granted to the said non existing person and is , therefore, the main beneficiary in the case. I am, therefore, of the view that charges under Section 120 B r/w Sections 420,467,468 and 471 IPC IPC and section13(2) read with section 13(1)(d) of the PC Act and also for the substantive offences under Sections 420,467 and 471 of IPC are made out against him.
69. A4 Ajay Upadhyay - The allegations against accused Ajay Upadhyay is that he used to visit the Registrar office in connection with the execution and registration of the sale deed. His role has been described by the witnesses including the witness cited at Sl. No. 50 Vikas Gupta. His signatures as a witness in some of the sale deeds and on 19 of the finishing agreements have been stated to be verified in the GEQD report. An amount of Rs. 58,85,000/ , out of the total amount disbursed by the PNB HFL as the amount for finishing of 19 flats is stated to be credited in his account no. 10304 in Corporation Bank, Dilshad Garden. There is, therefore, prima facie evidence to charge him also under Section 120B r/w Sections 420,467,468 and 471 IPC IPC and section13(2) read with section 13(1)(d) of the PC Act and also for the substantive offences under Sections 420 and 471 of IPC.
CBI Vs. Devendra Singh Rawat & Ors. Page 23 of 24 D.O.O. 15.11.2014 CBI Case No. 45/11
70. A5 Ram Niwas Dhuriya The allegations against him is that he forged the Resolution dated 10.01.2001 purported to have been passed by Indian Association of Investigative Reporter showing collection of Rs. 1,62, 50,000/ in cash and handed over to Shri Vinod Kumar Chadda and his wife Nirmal Chadda. The GEQD opinion has confirmed his signatures on the Resolution but has given a definite opinion that signatures purported to be of Nirmal Chadda do not belong to her. No opinion has been expressed on signature of V.K. Chadda. This on the face of it indicates that he was also a part of the conspiracy and had forged the above said Resolution. He is, therefore, reliable to be charged under Section 120B r/w Sections 420,467,468 and 471 IPC IPC and section13(2) read with section 13(1)(d) of the PC Act and also for the substantive offences under Sections 468 of IPC.
71. A6 Smt. Sanju Panday She is one of the applicant/borrower whose signatures on the application/documents along with and the sale deed have been verified by GEQD. The documents filed by her include the forged salary certificates and undertaking to pay the amount of EMIs. Therefore, I am of the view that there is prima facie material on record to charge her under Section 120B r/w Sections 420,467,468 and 471 I IPC and section13(2) read with section 13(1)
(d) of the PC Act PC and also for the substantive offences under Sections 420 and 471 of IPC.
72. Thus, prima facie, case against all the accused persons, as stated above, is made out and all the accused persons are liable to be charged in this case accordingly.
Announced in the open ( ALOK AGARWAL)
Court on 15.11.2014 Special Judge, PC Act CBI
Dwarka Courts, New Delhi.
CBI Vs. Devendra Singh Rawat & Ors. Page 24 of 24 D.O.O. 15.11.2014