Delhi District Court
Cb I vs . 1 Raman Kumar S/O Radhey Lal, on 7 June, 2011
1
IN THE COURT OF V .K .MAHESHWARI
SPECIAL JUDGE: (P C Act)03 CBI DELHI
Corruption Case No.29/10
CB I Vs. 1 Raman Kumar s/o Radhey Lal,
Clerk cumCashier, (under
suspension), State Bank of India,
Service Branch, Parliament
Street, New Delhi.
2 Sh. Chaman Kumar s/o Sh.
Radhey Lal, r/o A10, Derawala
Nagar, Delhi
3 Vipin Kumar Sharma s/o Sh.
Dwarka Nath Sharma, r/o 9A
Sanjay Nagar, Delhi 33
4 Raj Rani (discharged vide order Dt.
27.7.95)
5 Madan Kumar (discharged vide
order dt.27.7.95)
6 Santosh Sharma (discharged vide
order dt. 27.7.95)
7 Sh. K B Mehta s/o Late Sh. R C
Mehta, r/o 1/42 Model Town, Delhi
Date of Institution 2.1.87
R.C No. 1/86, 2/86, 4/86 & 8/86/CIUB/BS & FC/
CBI/N.D
Under Section U/s 120 B r/w 420IPC & U/s 167
IPC & Sec 5 (2) r/w Sec. 5 (1) (d)
C C No.29/10 1/250
2
PC Act, 1947
Arguments concluded 16.5.2011
on
Date of order 3.6.2011
JUDGMENT:
FACTS OF THE CASE .
Briefly the facts of this case according to prosecution are that RC1/86CIU(B) was registered on 15/1/86 on the basis of Source Information against Shri Raman Kumar, Ashok Kumar and others for cheating the State Bank of India to the tune of Rs. 5.67 lacs. RC2/86CIU(B) was registered on 28/1/86 on the basis of source information against Shri Raman Kumar, Vipin Kumar and others for cheating the State Bank of India to the tune of Rs. 18.52 lacs . RC4/86CIU was registered on 12/2/86 on the basis of Source Information against Shri Raman Kumar, Vipin Kumar and others for cheating the State Bank of India to the tune of Rs. 26.34.728/, RC8/86CIU was registered on 11.7.86 on the basis of Source Information against Shri Raman Kumar , Vipin Kumar and others for cheating the State Bank of India to the tune of Rs. 7.63 lacs. Investigation was carried out of all the aforesaid four cases and it was found that there was a single conspiracy by the accused persons C C No.29/10 2/250 3 to cheat the State Bank of India as a result thereof the State bank of India has suffered financial loss to the tune of Rs. 58,16,728/ on account of the various acts and omissions of the accused persons . 2 It is further stated that State Bank of India is a body corporate constituted by State Bank of India Act, 1955 having its Central Office in Bombay. Local branches of State Bank of India including Service Branch at 11 Parliament street, New Delhi are under the Administrative Control of Chief Regional Manager, State Bank of India, New Delhi. Clearing work between Banks is done in the clearing House which is managed and controlled by the Reserve bank of India which maintains accounts of all the banks participating in the clearing House for clearing instruments drawn upon each others. When a person having account with one Bank draws a cheque to another person, who is having his account with another Bank, the payee deposits the cheque with his bankers for collection of the proceeds of the cheque from the drawer's account with the drawee Bank . The payee's banker send the cheque for collection of the proceeds of the cheque to the drawee bank through its own Service Branch /Clearing Cell and this Branch/Cell of the collecting Bank brings the cheque to the Clearing House for C C No.29/10 3/250 4 delivery to the drawee Bank through sub slip and consolidated input statement. The representative of the Service Branch/Clearing Cell of the drawee Bank collects all the instruments with sub slips. RBI settlement sheets giving amount of instruments received and delivered are prepared relating to each Bank and Reserve Bank of India gives credit of the total amount to the collecting Bank and debit to the drawee Bank.
3 In Service Branch of State Bank of India , the clerks working in the evening shifts are assigned the job of verifying/tallying the amounts of instruments and the amount/figure as furnished by concerned collecting bank by typing lists bankwise and the morning shifts clerks are assigned the job of sending these instruments to respective branches by preparing covering typed lists. For efficient functioning of the clearing job four groups were formed. GroupI was named A to F, Group II was named G to L, GroupIII was named M to P and Group IV was named to Q to Z and each group was alloted alphabetically particulars Bank/Banks for inward clearing of instruments. Punjab & Sind Bank and UCO Bank were allotted to Group No. III (M to P Group). As per C C No.29/10 4/250 5 practice of the cheque presented by the collecting to the drawee Bank in the Clearing House is not returned to the collecting banker on the third day from the date of presentation, it is deemed to have been honoured by the drawee Bank and the collecting bank gives confirmed credit to the payee's account.
4 Shri Raman Kumar (A1) was appointed as Clerkcum Cashier in State Bank of India, Chandni Chowk Branch, Delhi w.e.f. 11.06.1982, he was transferred to newly created Service Branch of State Bank of India w.e.f. 4.7.1983 and worked in Group no. III (Evening shift) from 25.7.83 to 6.6.84. Instruments received from Punjab & Sind Bank and UCO Bank were being entrusted to Group No. III (Evening shifts) for typing out figures of instruments to tally amounts with the figures given by the aforesaid Banks and Shri Raman Kumar was one of the clerks of Group No. III. 5 Shri Chaman Kumar (A2) and Madan Kumar (A50 are younger brothers of Shri Raman Kumar )A1) and Smt. Raj Rani (A4) is mother of S/Shri Raman Kumar (A1),Chaman Kumar (A2) and Madan Kumar (A5). Shri Vipin Kumar Sharma (A3) is old friend of Shri Raman Kumar (A1) and Smt. Santosh Sharma (A6) is mother of Shri Vipin Kumar Sharma (A3) , Shri K B C C No.29/10 5/250 6 Mehtra (A7) is neighbour of A1, A2 and A5 and was very close to these accused persons.
6 Shri Raman Kumar (A1) while functioning as Clerk State Bank of India Service Branch, New Delhi during the period from August, 1983 to August, 1984 was a party to a criminal conspiracy at Delhi/New Delhi with his brothers S/Shri Chaman Kumar (A2) and Madan Kumar (A5) his mother Smt. Raj Rani (A4), Shri Vipin Kumar Sharma (A3) his friend, mother of Shri Vipin Kumar Sharma and Smt. Santosh Sharma (A6) and his neighbour Shri K B Mehta (A7) alongwith others with an object to commit the offence of cheating the State Bank of India, Service Branch, New Delhi and in order to achieve the object of conspiracy, Shri Raman Kumar (A1) abused his official position as a public servant in the matter of obtaining pecuinary advantage of huge amounts in various accounts opened by him and also by S/Shri Chaman Kumar (A2) and Vipin Kumar Sharma (A3) with Punjab & Sind Bank (branches Gujranwala Town, Asaf Ali Road, Karol Bagh, Naraina and defence colony) and UCO Bank (branches new Subzi Mandi and Kamla Nagar) by fraudulently and dishonestly C C No.29/10 6/250 7 removing cheques received in Clearing in Service Branch of the state Bank of India, New Delhi and prevented the amounts of the said cheques being debited in the accounts with State Bank of India (branches Pahar Ganj, Najafgarh Road, Jahangir Puri, Shakur Basti, Maya Puri, Chandani Chowk and New Delhi Main Branch) from which these cheques were issued and also by preparing false typed list of cheques in Service Branch of State Bank of India, New Delhi. 7 Shri Vipin Kumar Sharma (A3) in pursuance of the said criminal conspiracy opened SB Account no. 8109 on 26.8.83 in the name of Vipin Bhardwaj, 57 Adarsh Nagar, Delhi 33 with State Bank of India, Pahar Ganj Branch New Delhi and obtained cheque book containing cheques bearing No.s 086421 to 086440 on 26.8.83. Similarly Shri Vipin Kumar Sharma (A3) opened SB Account no. 14322 on 6.9.83 with State Bank of India, Najafgarh Road Branch, Delhi in the assumed name of Naveen Kumar, r/o 1073A, Basai Darapur, Delhi and obtained cheque book bearing cheque NOs. 402481 to 402500 on 6.9.83. Shri Vipin Kumar Sharma (A3) also opened current account no. 543 on 2.3.84 with State Bank of India, Shakurbasti Branch, Delhi in the name of fictitious firm M/s Santosh Sales showing himself as V Kumar of C C No.29/10 7/250 8 126/3, Ram Puria , Delhi as Proprietor and obtained cheque book bearing cheque Nos. 7784401 to 778450 on 4.3.84. Shri Vipin Kumar Sharma (A3) opened current account no. 1949 on 2.3.84 with State Bank of India, Maya Puri Branch, New Delhi in the name of fictitious firm M/s Santo Sons showing himself as Santosh Kumar Sharma of A24/A, Naraina Industrial Area, Deli24 as Proprietor and obtained cheque book bearing cheque Nos. 970851 to 970875 on 2.3.84 8 Sh. Vipin Kumar Sharma (A3) in pursuance of the said criminal conspiracy opened current account no. SIB3/47300 on 5.3.84 with State Bank of India, Chandni Chowk, Delhi in the fictitious name and address of m/s Vishal Plastic Enterprises showing himself as Proprietor as V. Inderpal, R/o. 5014/1, Balli Maran, Chandni Chowk, Delhi and this account opening form was introduced by Sh. K.B.Mehta (A7) Proprietor of M/s. Kay Bee & Co., 373 B, Kata Naya, Chandni Chowk, Delhi, knowingly that the actual name of the account holder was Vipin Kuma Sharma. It is further stated that no such firm M/s Vishal Plastic Enterprises has been in existence at the said given address. Shri Vipin Kumar C C No.29/10 8/250 9 Sharma (A3) obtained cheque book containing cheque Nos. 332501 to 332600 on 05.03.84 in this account.
9 In pursuance of the aforesaid criminal conspiracy Shri Chaman Kumar (A2) opened SB Account No. 11661 on 23.11.83 with the State Bank of India, Jahangirpuri Branch, Delhi in an assumed name as Ashok Kumar, r/o. K1434 Jahangirpuri, Delhi and obtained cheque book containing cheque Nos. 695321 to 695340 on 24.11.83 in this account. Shri Chaman Kumar (A2) also obtained cheque number 459433 which was one of the stolen cheques from cheque no. 459430 to 459440 which was issued to Dharam Pal Rojha, Clerk, State Bank of India, Service Branch, New Delhi from his staff account no. 445/96118 with the State Bank of India, New Delhi Main Branch on 25.01.83. Shri Dharam Pal Rojha had reported its loss to the Bank on 02.02.84. 10 In pursuance of the said criminal conspiracy Shri Vipin Kumar Sharma (A3) revived his inoperative SB Account no. 3573 with UCO Bank, New Subzi Mandi Branch, Azadpur, Delhi ion 29.08.83 by depositing Rs. 100/ and deposited six cheques bearing Nos. 086422 for Rs. 65,000/ on 01.09.83, 402482 for Rs. 24,000/ on 09.09.83, 086424 for Rs. 38,000/ on 27.09.83, 0402488 for Rs. C C No.29/10 9/250 10 65,000/ on 20.10.83, 402489 for Rs. 65,000/ on 09.12.83 and 086429 for Rs. 74,000/ on 21.12.83 in this account and obtained credits of these amounts on 02.09.83, 10.09.83, 28.09.83, 21.10.83,10.12.83, 22.12.83 respectively while no debits were raised in respective accounts with State Bank of India, Pahar Ganj and Najafgarh Road Branch. This account was closed on 29.12.83 by withdrawing full amount of the fraud between 05.09.83 to 29.12.83.
11 In pursuance of the said criminal conspiracy Sh. Vipin Kumar Sharma (A3) opened SB Account no. 19001 with UCO Bank, Kamla Nagar Branch, Delhi on 14.09.83 in his own name and deposited cheque Nos. 086425 for Rs. 65,000/, 086427 for Rs. 47,000/, 086428 for Rs. 47,000/ drawn on State Bank of India, Pahar Ganj, Delhi and cheque No. 402490 for Rs. 65,000/ drawn on State Bank of India, Najafgarh Road Branch on 27.09.83, 20.10.83, 09.12.83 and 22.12.83 respectively and obtained credits in this account on 29.09.83, 22.10.83, 10.12.83 and 23.12.83 while no debits were raised in respective accounts with the State Bank of India, Paharganj, Najafgarh Road Branches. This account was closed on 30.12.83 by withdrawing total amount of the fraud C C No.29/10 10/250 11 between 03.10.83 to 30.12.83.
12 In pursuance of the said criminal conspiracy Shri Vipin Kumar Sharma (A3) opened SB Account no. 2013 with Punjab & Sind Bank, Asaf Ali Road Branch on 13.09.83 in the name of Shri Vipin Kumar Chawla, S/o Shri D.N. Chawla r/o 116/2, Bajaj House, 876 Nehru Place, New Delhi and deposited cheque no. 0402485 for Rs. 74,000/ drawn on State Bank of India, Najafgarh Road Branch on 15.09.83 and obtained credit of Rs. 74,000/ on 16.09.83 while no such debit had been raised in respective account with State Bank of India, Najafgarh Road Branch, Delhi. This account was closed on 02.11.83 by with drawing total amount of the fraud on 26.09.83 and 02.11.83.
13 In pursuance of the said criminal conspiracy Shri Vipin Kumar Sharma (A3) also opened SB Account no. 8342 with Punjab & Sind Bank, Karol Bagh, New Delhi on 26.08.83 and deposited cheque No. 086421 for Rs. 46,000/ drawn on State Bank of India, Pahar Ganj, Delhi on 30.08.83 and Cheque No. 0402487 for Rs. 38,000/ drawn on State Bank of India, Najafgarh Road Branch on 15.09.83 and obtained credits in this account on 02.09.83 and 17.09.83 while no such debits were raised in the respective accounts C C No.29/10 11/250 12 with State Bank of India, Pahar Ganj and Najafgarh Road Branches. This account was closed on 02.11.83 by withdrawing total amount of the fraud from 04.09.83 to 02.11.83.
14 In pursuance of the said criminal conspiracy Shri Vipin Kumar Sharma (A3) opened current account no. 2475 on 123.02.84 with Punjab & Sind Bank, Naraina Branch, New Delhi in the name of nonexisting firm M/s Simplex Traders, 118 Bajaj House, Nehru Place showing himself as Vipen Mohan Sharma, S/o Sh. S.K. Sharma, Proprietor of this firm. In this account Shri Vipin Kumar Sharma deposited eight cheques bearing Nos. 332507 for Rs. 2,72,000/ and 778404 for Rs. 1,19,000/ on 09.03.84, 778411 for Rs. 1,46,000/ and 232509 for Rs. 1,91,000/ on 14.03.84, 332502 for Rs. 2,81,000/ on 21.03.84, 332508 for Rs. 1,91,000/ and 778412 for Rs. 2,70,000/ on 19.04.84 and 778401 for Rs. 3,80,000/ on 25.04.84 drawn on State Bank of India, Shakurbasti and Chandni Chowk branches and obtained credits for a total sum of Rs. 18,52,000/ on 10.03.84, 15.03.84, 22.03.84, 21.04.84 and 26.04.84 in this account with Punjab & Sind Bank, Naraina Branch, New Delhi while no debits had been raised in current account No. SIB3/47300/ with State Bank of India, Chandni Chowk Branch C C No.29/10 12/250 13 and current account no. 543 with State Bank of India, Shakurbasti Branch, Delhi. This account was closed on 13.05.84 by withdrawing total amount of the fraud from 14.03.84 to 30.05.84 in cash.
15 In pursuance of the said criminal conspiracy Sh. Vipin Kumar Sharma (A3) also opened current account no. 1289 with Punjab & Sind Bank, Defence Colony Branch, New Delhi on 18.02.84 in the name of nonexisting firm M/s. Swastic Enterpriss, G18, Deepali Building, Nehru Place, New Delhi posing himself as Vipen Chander, S/o Sh. D.N. Bhardwaj as Proprietor of the firm. In this account 12 cheques for a total amount of Rs. 26,34,728/ drawn on the State Bank of India, Maya Puri, Chandni Chowk and Shakurbasti Branches bearing cheque Nos. 332505 for Rs. 2,81,675/, 970857 for Rs. 83,099/ and 778403 for Rs. 92,954/ on 08.03.84, 332503 for Rs. 2,90,000/ on 12.03.84, 778402 for Rs. 2,72,000/ on 15.03.84, 970853 for Rs. 2,90,000/ on 21.03.84, 332506 for Rs. 2,72,000/, 778405 for Rs. 1,81,000/ on 12.04.84, 778406 for Rs. 2,72,000/ and 970852 for Rs. 1,64,000/ on 18.04.84, 970854 for Rs. 1,82,000/ and 332510 for Rs. 2,54,000/ on 23.04.84 were deposited in this account and obtained fraudulent C C No.29/10 13/250 14 credits on 09.03.84, 13.03.84, 16.03.84, 22.03.84, 14.04.84, 19.04.84, and 24.04.84 while no debits were raised in respective accounts with State Bank of India, Chandni Chowk, Maya Puri and Shakurbasti. This account was closed on 12.05.84 by withdrawing total amount of the fraud between 13.03.84 to 12.05.84 in cash. 16 In pursuance of the aforesaid criminal conspiracy Sh. Raman Kumar (A1) deposited Cheque No. 402481for Rs. 70,000/ on 14.09.83 drawn on State Bank of India, Najafgarh Road Branch and another cheque No. 695337 for Rs. 65,000/ drawn on State Bank of India, Jahangirpuri on 06.02.84 in his SB Account no. 3040 maintained by him with Pubjab & Sind Bank, Gujranwala Town, Delhi w.e.f. 21.07.81 and obtained credits of these cheques on 15.09.83 and 07.02.84 while no such debits were raised in respective accounts with State Bank of India, Najafgarh Road and Jahangirpuri Branch.
17 In pursuance of the aforesaid criminal conspiracy Sh. Chaman Kumar (A2) opened SB Account no. 3918 on 21.10.83 which was introduced by Sh. Raman Kumar (A1). In this account Sh. Chaman Kumar (A2) deposited six cheques for a total amount of Rs. 4,32,000/ bearing Nos. 086423 for Rs. 74,000/ on 10.11.83, C C No.29/10 14/250 15 0695322 for Rs. 70,000/ on 29.11.83, 0695324 for Rs. 70,000/ on 14.12.83, 0695325 for Rs. 70,000/ on 30.12.83. 459433 for Rs. 74,000/ on 02.02.84 and 0695335 for s. 74,000/ on 06.02.84 drawn on State Bank of India, Pahar Ganj, Jahangirpuri and New Delhi Main Branch (showing as issued from Okhla Branch) and obtained credits in this account on 11.11.83, 30.11.83, 15.12.83, 30.01.84, 03.03.84 and 07.02.84 while no such debits were raised in respective accounts with State Bank of India, Paharganj, Jahangirpuri and New Delhi Main Branch.
18 It is further stated that aforesaid 41 cheques drawn on aforesaid branches of State Bank of India for a total amount of Rs. 58,16,728/ reached in Service Branch of State Bank of India in Clearing dated 02.09.83, 10.09.83, 15.09.83, 16.09.83, 17.09.83, 28.09.83, 29.09.83, 21.10.83, 22.10.83, 11.11.83, 30.11.83, 10.12.83, 15.12.83, 22.12.83, 03.01.84, 03.02.84, 07.02.84, 09.03.84, 10.03.84, 13.03.84, 15.03.84, 16.03.84, 22.03.84, 24.03.84, 14.04.84, 19.04.84, 21.04.84 and 26.04.84 (29 dates) from Clearing Cells of UCO Bank and Punjab & Sind Bank and these instruments were dealt with in Group no. III (Evening Shift) by Sh. Raman Kumar, Clerk. While typing out figures of cheques received C C No.29/10 15/250 16 from these banks on the aforesaid dates Sh. Raman Kumar (A1) surreptitiously removed these 41 cheques and inserted fake entries in the typed lists equivalent to the amount of cheques removed by him and balanced the figures to avoid detection of removal of the cheques and prevented those cheques to reach concerned branches of SBI for appropriate disposal thereof.
19 Sh. Madan Kumar (A5) had account no. SF8360 with Punjab National Bank, Model Town, Delhi and Smt. Raj Rani (A4) had account no. SF8361 with Punjab National Bank, Model Town, Delhi. Smt. Raj Rani (A4) is a housewife and Sh. Madan Kumar (A5) is a clerk in Punjab National Bank, Printing and Stationery Department, Wazirpur, Delhi. Smt. Raj Rani (A4) and Sh. Madan Kumar (A5) made several transactions of huge amounts in the aforesaid accounts with Punjab National Bank, Model Town, Delhi after commission of the offence. Smt. Raj Rani (A4) also acquired house at A10, Derawala Nagar, Delhi and Sh. Madan Kumar (A5) also acquired imported Datsun Car bearing registration No. DIC955 and motor cycle bearing registration No. DIT8687 apart for other assets.
20 Smt. Santosh Sharma (A6) is also a housewife and her C C No.29/10 16/250 17 husband Sh. Dwarka Nath Sharma is Driver in Delhi Transport Corporation. She opened SB Account no. 5677 on 02.06.84 with Banda Bahadur Marg Depot Counter of Syndicate Bank, Delhi in which heavy deposits have been made during June, 1984 to August, 1984. Smt. Santosh Sharma (A6) also purchased plot at A1/38 Model Town, Delhi and house at A/148, Ashok Vihar, Phase II, Delhi in 1984. Sh. Vipin Kumar Sharma (A3) also acquired house at 9 & 9A, Sanjay Nagar, Delhi33 in 1984, and a car bearing registration no. DHE 477 and three wheeler scooter bearing registration no. DER8905 apart from other assets. 21 Sh. K.B. Mehta (A7) introduced current account no. SIB3/47300 at State Bank of India, Chandni Chowk, Delhi on 05.03.84 in a false/fictitious name of V. Inder Pal, Proprietor of M/s Vishal Plastic Enterprises, 5014/1, Balli Maran, Chandni Chowk, Delhi and out of the cheque book obtaind against this account in as much as eight cheques were utilised by Sh. Vipin Kumar Sharma (A3) in pursuance of the criminal conspiracy and fraudulent credits of Rs. 20,32,675/ were obtained without any corresponding debits in this account. Sh. K.B. Mehta (A7) also made a payment of Rs. 50,000/ to Smt. Raj Rani (A4) in May, 1984.
C C No.29/10 17/250 18 CHARGE 22 Copies required U/S 207 Cr P C supplied to all the accused. My Ld. Predecessor after hearing both the parties vide his order dt. 27.7.1995 discharged accused Smt. Raj Rani, Sanotsh Sharma and Madan Kumar and ordered for framing of charge against Raman Kumar, Chaman Kumar, Vipin Kumar Sharma and K B Mehta U/s 120 B r/w Sec. 420 IPC. He has also ordered for frmaing of charges for substantive offences U/s 167 /420 IPC and Sec. 5 (2) r/w Sec. 5 (1) (d) of P C Act, 1947 against accused Raman Kumar and U/s 420 IPC against accused Chaman Kumar and Vipin Kumar and K B Mehta. Accordingly my Ld. Predecessor has framed charged on 17.11.95 as per order dt. 27.7.95 All the accused pleaded not guilty to the charge and claimed trial. Hence, this trial.
PROSECUTION EVIDENCE 23 Prosecution, in order to prove its case, has produced following witnesses: PW1 Sh. S.C. Kathuria has proved account opening form Ex PW1/A, payinslip PW1/C, original ledger sheet Ex PW1/D. PW2 Sh. Ramphal has proved Seizure Memo Ex PW2/A, C C No.29/10 18/250 19 cheque book issue register Ex PW 2/B, cheque book issue entry Ex PW 2/C. PW3 Sh. Rajesh Bajaj has proved documents which is already proved as Ex PW1/A. PW4 Sh. Kishan Lal has proved that there was no house with the no. 1073A in Basai Darapur During the year 198283.
PW5 Sh. Shiv Dutt Trikha has proved payinslip Ex PW5/A, account opening form Ex PW 5/B, specimen signature card Ex PW5/C, cheque book issued entry is Ex PW5/D, ledger sheet Ex PW5/E. PW6 Sh. Narinder V. Katyal has proved account opening form Ex PW6/A, payinslip Ex PW6/B, ledger sheet Ex PW6/C, cheque issued against the account of Sh. Santo sons in favour of self Ex PW 6/D. PW7 Sh. Gurmukh Nihal Singh has proved account opening form Ex PW7/A. PW8 Sh. Rakesh Gulati has proved account opening form Ex PW 8/A. PW9 Sh. Kuldeep Singh Boela has proved original ledger sheet Ex PW 9/A, encircled entry on ledger sheet Ex PW 9/A1, C C No.29/10 19/250 20 original request Ex PW 9/B. PW10 Sh. Ravi Shivpuri has proved account opening form Ex PW10/A, credit slips Ex PW10/B, PW 10/C, Ex PW10/D, Ex PW 10/E, and Ex PW10/F, original slip Ex PW 10/G, credit slips Ex PW10/H, Ex PW 10/I, original cheques Ex PW 10/J, Ex PW 10/K, Ex PW 10/L, Ex PW 10/M1to Ex PW 10/M9, ledger sheet Ex PW 10/N. PW11 Sh. Chander Prakash has not proved any documents. PW12 Sh. Ranjit Singh has proved original clearing register Ex PW 12/A, cheque returned entry Ex PW 12/B, payinslip Ex PW12/C, original clearing register Ex PW12/D, Ex PW 12/G, entry Ex PW 12/E, payinslip Ex PQ 12/F, entry pertaining to deposit of Rs. 74,000/ Ex PW 12/H, payinslip Ex PW 12/I, entry dated 21.11.83 Ex PW 12/J, original clearing register Ex PW 12/K, entry no. 3 dated 29.11.83 Ex PW 12/L, payinslip Ex PW 12/M, entry no. 32 of the register dated 14.12.83 Ex PW 12/K,entry Ex PW 12/N, payinslip Ex PW 12/O, original clearing register Ex PW 12/P, entry no. 25 Ex PW 12/P1, payinslip Ex PW 12/P2, entry no. 15 Ex PW 12/P3, deposit of cheque entry Ex PW 12/P3, entry no. 37 dated 06.02.84 Ex PW 12/D, payinslip Ex PW 12/D2, clearing C C No.29/10 20/250 21 scrolls Ex PW 12/Q1 to Ex PW 12/Q7.
PW13 Sh. Jitender Pal Singh has proved cheques Ex PW 13/A to Ex PW 13/F, application in the handwriting of Raman Kumar Ex PW 13/G. PW 14 Sh. Anil Kumar Magoo has proved attendance register Ex PW 14/A, detailed statement of cheques Ex PW 14/B to Ex PW 14/E, cheques received list Ex PW 14/F, list dated 10.03.84 Ex PW 14/G, list dated 13.03.84 Ex PW 14/H. PW15 Sh. Anil Kumar Malhotra has proved that no firm under the name and style of M/s Santo Sons was functioning at A24/A Phase I Naraina Industrial Area in the year 1984 to 1986.
PW 16 Sh. J. Narain has proved returned envelope Ex PW 16/A and remarks explaining the non delivery at the back of the envelope is Ex PW 16/B. PW 17 Sh. Ram Lakhan has proved the documents which is already proved as Ex PW 5/B. PW 18 Sh. Ashok Kumar has proved account opening form Ex PW 18/A. PW 19 Sh. Pardeep Kumar has proved letter addressed to DSP CBI Ex PW 19/A. C C No.29/10 21/250 22 PW 20 Sh. Harcharan Singh has proved the documents which is already proved as Ex PW7/A. PW 21 Sh. Pritpal Singh Bindra has proved account opening form Ex PW 21/A, specimen signature card Ex PW 21/B, draft Ex PW 21/C, cheque Ex PW 21/D. PW 22 Sh. Dharam Pal Rojha has proved account opening form Ex PW 22/A as well as documents already proved Ex PW9/B. PW 23 Sh. Ved Prakash Bangia has proved payinslip Ex PW 23/A,cheque book register Ex PW 23/B, Memo Ex PW 23/C. PW 24 Sh. A.S. Chawla has proved receipt memos Ex PW 24/A, Ex PW 24/B, Ex PW 24/C, documents handed over to CBI Ex PW 24/D1 to Ex PW 24/D48.
PW 25 Sh. Y.M. Soni has proved specimen handwriting Ex PW 25/A1 to Ex PW 25/A4.
PW 26 Sh. M.L. Narang has proved disclosure statement of Vipin Kumar Sharma Ex PW 26/A, specimen signature sheets of Raman Kumar Ex PW 26/B1 to Ex PW 26/B7, specimen signature sheets of Vipin Kumar Ex PW 26/C1 to Ex PW 26/C27, statement of accused Vipin Kumar Ex PW 26/D1.
PW 27 Sh. V.P. Sachdeva has proved the documents which is C C No.29/10 22/250 23 already proved as Ex PW 23/C. PW 28 Sh. Anil Mehra has proved seizure memo Ex PW 28/A, five outward clearing registers Ex PW 28/B1 to Ex PW 28/B5, requisition letters Ex PW 28/C1 to Ex PW 28/C3, seizure memo Ex PW 29/D, specimen signature card Ex PW 28/G1, documents detailed at Sl. No. 29 of seizure memo Ex PW 28/F1, documents detailed at Sl. No. 40 to 45, 46,47 to 50. 51,52,53,54 to 57 and 59, 60, 61 to 65, 66, 67, 68 to 82, 83, 85 of seizure memo Ex PW 28/E1 to Ex PW 28/E5, Ex PW 28/E6 to Ex PW 28/E9, Ex PW 28/E11, Ex PW 28/E10, Ex PW 28/E12 to Ex PW 28/E16, Ex PW 28/E17 to Ex PW 28/E21, Ex PW 28/E22 to Ex PW 28/E32 as well as document already proved as Ex PW 12/I and Ex PW 12/O Ex PW 12/P2, the specimen card is Ex PW 28/G2, ledger sheet Ex PW 28/F2, cheque detailed memo Ex PW 28/E33 PW29 Sh.S K Verma has proved seizure memo Ex PW 29/A, ledger sheet pertaining to M/s Santosh Sales Ex PW 29/B and current account information sheet Ex PW 29/C. PW30 Sh. Kailash Narain Mehra has proved documents already proved by other PWs.
PW31 Shri Dhiren Chander has proved Clearing Register Ex C C No.29/10 23/250 24 PW31/A, Clearign House Schedule Ex PW31/B, Certified copy of SB A/c No. 3573.
PW32 Shri S K Kalia has proved Seizure Memo Ex PW32/A, Ex PW32/B, Ex PW32/C, Original Ledger Sheet Ex PW32/D. PW33 S. Didar Singh has proved Account Opening Form Ex PW33/A, Specimen Signature Card Ex PW33/B, Seizure Memo Ex PW33/D and other exhibited documents.
PW34 Prem Lata has proved the account opening sheet Ex PW34/A, Pay in slip Ex PW34/B, Sheet of cheque book issue register Ex PW34/C. PW35 ShGurjit Singh has proved Pay in Slips Ex PW35/A1 to Ex PW35/A7, Clearing Register Ex PW35/B, Entry of Pay in slip Ex. PW35/C1 , Ex. PW35/C2, Cheque deposite entry Ex. PW35/C3 to Ex. PW35/C7 and also proved the documents already proved by other witnesses.
PW36 Sh. H.V. Rangaswamy has proved the sanction order ExPW36/A. PW37 Sh. O.P. Malhotra has proved the seizure memo Ex. PW37/A, cheque book issue register Ex. PW37/B, seizure memo Ex. PW37/C. C C No.29/10 24/250 25 PW38 Sh.Vimal Rai Arora has proved the documents already proved by the other witness.
PW39 Sh.C.H. Batra has proved the documents already proved by the other witness.
PW40 Sh. R.P. Malhotra has proved the RBI inward clearing register Ex. PW40/A, office order Ex. PW40/B, Page No. 149 Ex. PW40/B1, the computer statement Ex. PW40/C1 to Ex. PW40/C24 ( sheets), Sheets Ex. PW40/D1 to Ex. PW40/D34, disclosure statements of accused Raman Kumar and Chaman Kumar are Ex. PW40/E1 and Ex. PW40/F. PW41 Sh. Pradeep Daga has proved the clearing schedule of Punjab & Sindh Bank, Naraina Branch signed by Manager Sh. Amarjit Singh Ex. PW41/A, slip, i.e. outward scroll Ex. PW41/B, RBI consolidated statement is Ex. PW41/C, relevant entry Ex. PW41/D, scroll of the cheques Ex. PW41/E, the entry in the scroll is Ex. PW41/F, clearing schedule pertaining to Naraina Branch Ex. PW41/G. PW42 Sh.Virender Kumar has proved the production memo Ex. PW42/A. PW43 Sh. D.D. Joshi has proved the documents already C C No.29/10 25/250 26 proved by the other witness.
PW 44 Sh. Rajeshwar Prasad Gupta has deposed orally. PW45 Shri Arsh Sehgal has proved the account opening form of account No. 8342 Ex. PW45/A, specimen signature card relating to the aforesaid account Ex. PW45/B, Ledger sheet Ex. PW45/C, Pay in slip Ex. PW45/D, Another Pay in slip amount of Rs.38,000/ Ex. PW45/E, Pay in slip amount of Rs.46,000/ Ex. PW45/F, four cheques Ex. PW45/G1 to G4, Memo Ex. PW45/H and Ex. PW45/J PW 46 Sh. Amarjit has deposed orally.
PW 47 Sh. Jagdish Parshad Sharma has proved the documents already proved by the other witness.
PW48 Sh. Rakesh Mathur has proved the Outward Clearing Register Ex. PW48/A, entries are Ex. PW48/B and Ex. PW48/C, Pay in slip Ex. PW48/D, Pay in slip Ex. PW48/E, cheque Ex. PW48/F. PW 49 Mrs. Arvind Wadhavan has proved the application form Ex. PW49/A, voucher Ex. PW49/B, statement of account in two sheets Ex. PW49/C1 and C2, signature and writing in the register Ex. PW49/D, two schedules dated 08.03.84 and 23.04.84 C C No.29/10 26/250 27 are Ex. PW49/E and Ex. PE49/F, clearing register Ex. PW49/G and Ex. PW49/H. PW50 Shri Charanjit has not proved any document. He has deposed orally.
PW51 Sh. D.N. Utreja has proved the account opening form Ex. PW51/1, Pay in slip Ex. PW51/2, entry Ex. PW51/3, specimen signature card of M/s Vishal Plastic Enterprise Ex. PW51/4, ledger sheet is Ex. PW51/5, inoperative transfer account relating to Vishal Plastic Enterprise Ex. PW51/6, instructions sheet Ex. PW51/7 PW52 Sh. Kuldeep Singh has proved the documents already proved by the other witness.
PW 53 Sh. Ashok Makan has proved the documents already proved by the other witness.
PW54 Sh. Vikram Singh has deposed orally.
PW55 Sh.Gopi Ram has deposed orally.
PW56 Sh. Surinder Mohan has proved the documents already proved by the other witness.
PW57 Sh. Vinod Ahuja has proved the documents already proved by the other witness.
PW 58 Mrs. Phool Rani has proved the documents already C C No.29/10 27/250 28 proved by the other witness.
PW59 Sh.Chander Pal has proved the writing of Sh. L.N. Jatwal Ex. PW59/1.
PW60 Sh. Taranjit Singh has proved the clearing register Ex. PW60/1, the entries contains from page 36 to 39 Ex. PW60/2 collectively, the credit voucher Ex. PW60/4, the impress clearing dated 26.04.84 Ex. PW60/5, cheques Ex. PW60/6.
PW 61 Sh. Varinder Kumar Khanna has proved Controlling Register containing entries 10.2.84 to 30.7.84 Mark Ex PW 61/1 and also proved the documents already proved by PW46.
PW 62 Sh. Manjeet Singh has proved the documents already proved by other PWs.
PW 63 Sh. R K Bhalla has proved the personal file of Shri Raman Kumar mark Ex PW 63/1 and his writings and signature at page Nos. 5,6,9to 13,15 to 19 , 23,26,32 & 33 collectively Ex PW 63/2.
PW 64 Sh. Surinder Kumar has proved lists mark PW64/X1 & PW64/X2.
PW 65 Sh. Gursharan Singh Chawla has proved the documents already proved by other PWs.
C C No.29/10 28/250 29
PW 66 Sh. V K Kakkar has proved the documents already proved by other PWs.
PW 67 Sh. Rajeshwar Chander has proved entries from serial No.1 to 45 in Outward Clearing Register mark Ex PW 67/1 and also proved the documents already proved by other PWs.
PW 68 Sh. Varinder Pal Singh has proved the documents already proved by other PWs.
PW 69 Sh. Surinder Kumar has deposed orally and has not proved any document.
PW 70 Sh. Vijay Kumar Mahindru has deposed orally and has not proved any document.
PW 71 Sh. Kishan Swaroop has proved typed list collectively marked as PW71/A1 to A7 and RBI Settlement Sheet mark PW71/B1 to B4.
PW 72 Sh. P A Venkatchalam has deposed orally and has not proved any document.
PW 73 Sh. Satinder Pal Singh has proved clearance register for the perioid 16.9.83 to 2.11.83 and 6.8.83 to 15.9.83 Ex PW 73/A & Ex PW 73/B, entry dt. 2.9.93 at page No.71, serial No. 76 Ex PW 73/B1, clearing schedule Ex PW 73/C and Ex PW 73/D. C C No.29/10 29/250 30 PW 74 Sh. Raj Kumal Srivastava has proved account opening form Ex PW 74/A. PW 75 Sh. Gurcharan Singh Bhatia & PW 76 Sh. Kanwar Raj Gupta have proved the documents already proved by other PWs.
PW 77 Sh. Raj Kumar Gupta has proved pay in slip Ex PW 77/A1 to A3, certified copy of ledger Ex PW 77/B and cheques Ex PW 77/C1 to C9.
PW78 Sh. Bhoodev has proved pay in slip Ex PW 78/A, Entry dt. 27/28/9/83 in Clearing Register of UCO Ex PW 78/B, clearing schedule Ex PW 78/C, entry dt. 21.10.83 in Clearing Register of branch Ex PW 78/D, relevant page dt. 22.12.83 of the register Ex PW 78/E and clearing schedule Ex PW 78/F. PW 79 Sh. Amritpal Singh Chawla has proved entry at page No.52in Clearing Register of branch Ex PW 79/A and clearing schedule Ex PW 79/B and also proved the documents already proved by other PWs.
PW 80 Sh. Dinesh Kumar Gupta has proved attendance register of Raman Kumar Ex PW 80/A and his statement Ex PW 80/B. PW 81 Mool Chand has proved registered envelope C C No.29/10 30/250 31 bearing No. RL2771 dt. 15.2.86 Ex PW 81/A. PW 82 Sh. Manmohan Singh has deposed orally and has not proved any document.
PW 83 Sh. Om Parkash has proved entries dt. 20.10.83 and 9.12.83 Ex PW 83/A & Ex PW 83/B and pay in slip Ex PW 83/C and also proved the documents already proved by other PWs.
PW 84 Vimal Kumar Srivstava has proved the documents already proved by other PWs.
PW85 Sh. P S verma has proved cheque Ex PW 85/A and also proved the documents already proved by other PWs.
PW86 Sh. Ghanshyam Singh has proved registered envelope Ex PW 86/A. PW 87 Sh. Kuldeep Singh has proved account opening form Ex PW 87/A, pay in slips Ex PW 87/B1 to B7, pay in slip Ex PW 87/B2, three cheques Ex PW 87/C1 to C3 and cheque book Ex PW 87/D. PW88 Sh. S K Kapoor has deposed orally and has not proved any document.
PW 89 Sh. Ramesh Kumar has proved transfer voucher Ex PW 89/A, pay in slip Ex PW 89/B and cheque Ex PW 89/C and C C No.29/10 31/250 32 also proved the documents already proved by other PWs.
PWs 90 Sh. Paranjet Singh, PW91 Ram Singh Setia, PW92 Sh. S K Gulati, and PW93 Sh. Ashok Kumar Rajpal have proved proved the documents already proved by other PWs.
PW94 Ms. Vidya Sachdeva has deposed orally and has not proved any document.
PW 95 Sh. S P Singh Khurana has proved four seizure memos dt. 18.1.86 and 21.1.86 Ex PW 95/A1 to A5.
PW 96 Sh. Anil Nigam has proved seizure memo dt. 14.7.86 Ex PW 96/A. PW 97 Sh. Yogesh Kant has proved seizure memo dt. 7.5.86 Ex PW 97/A, membership form and accounts regarding the contribution made by Chaman Lal collectively exhibited as Ex PW 97/B, another membership form and chit agreement in the name of Chaman kumar collectively exhibited as Ex PW 97/C, another set of membership form and chit agreement in the name of Asian Enterprises collectively exhibited as Ex PW 97/D. PW 98 Sh. Inderjeet Sehgal has proved the documents already proved by other PWs.
PW 99 Sh. Balwant Rai Bhandari has proved C C No.29/10 32/250 33 agreement for sale Ex PW 99/A, seizure memo dt. 20.10.86 Ex PW99/B and carbon copy of receipt Ex PW 99/C. PW 100 Sh. Subhash Chander has proved envelope Ex PW 100/A. PW 101 Sh. VS Kartikeyan has proved account opening form Ex PW 101/A, specimen signature card Ex PW 101/B & letter dt. 12.9.81 Ex PW 101/C. PW 102 Sh. Vijay Bhatia has proved seizure memo dt. 27.1.86 Ex PW 102/A and seized documents collectively exhibited as Ex PW 102/B. PW 103 Sh. Simarjeet Singh has proved schedule dt. 14.3.84 Ex PW 103/A, vouchers dt. 24.3.84 & 26.4.84 Ex PW 103/B & Ex PW 103/C. PW 104 Sh. S N Verma has proved seizure memo dt. 19.12.86 Ex PW 104/A and documents seized vide this memo collectively Ex PW 104/B. PW 105 Sh. Parveen Kumar has proved RBI Settlement Sheet Ex PW 105A1 to A8, eight bank slips Ex PW 105/B1 to B8 and his statement Ex PW 105/C. PW 106 Sh. Bhupinder Singh has proved seizure memo C C No.29/10 33/250 34 dt. 13.2.86 Ex PW 106/A. PW 107 Sh. M S Oberoi has proved the documents already proved by other PWs.
PW 108 Sh Harbans Lal Sharma has proved seizure memo dt. 7.5.86 Ex PW 108/A. PW 109 Sh Sandipan Sharma has proved seizure memo dt. 27.1.86 Ex PW 109/A. PW 110 Sh S M Shukla has proved seizure memo dt. 14.5.86 Ex PW 110/A and specimen signature card Ex PW 110/B & C. PW111 Sh. Indraj Singh has proved endorsement Ex. PW111/A. PW112 Sh. Ram Moorty ( Retd) has proved the seizure memo Ex. PW112/A, another seizure memo Dated 27.05.86 Ex. PW112/B PW113 Sh. B.R. Behl has proved the seizure memo dated 08.091986 Ex. PW113/A. PW114 Sh.Gurcharan Singh has proved the entries Ex. PW114/A to E., the relevant entry in register( D129) Ex. PW114/F, Pay in slips are Ex. PW114/D1 to G7, eight cheques Ex. PW114/H1 to H8.
C C No.29/10 34/250 35
PW115 Sh. Satbir Singh Bhatia has proved the entries dated 16.09.83 Ex. PW115/A, the clearing schedule dated 16.09.83 Ex. PW115/B, pay in slip is Ex. PW115/C. PW116 Sh. Ashok Kumar Jain has proved clearing schedule dated 10.12.83 Ex. PW116/A and documents already proved.
PW117 Sh. Ram Chander has proved entry in clearing register Ex. PW117/A to PW117/C. PW118 Sh. Devi Dutt has proved clearing schedule dated 21.12.83 Ex. PW118/A. PW119 Sh. V.K. Nanda has proved the seizure memos Ex. PW119/A1 to Ex. PW119/A8.
PW120 Sh. R.G. Bansal has proved the attendance of Raman Kumar.
PW121 Sh. Sat Parkash ( Retd.) has deposed orally. PW122 Sh. Ramesh Chand has proved the documents already proved by the other witness.
PW123 Sh. K. L. Khattar has proved the documents already proved by the other witness.
PW124 Sh. U.D. S. Sodhi has proved the FIR Ex. PW124/A, search memo Ex. PW124/B and proved the documents already C C No.29/10 35/250 36 proved by the other witness.
PW125 Dr. S.C. Mittal has proved his report Ex. PW125/A , letter Ex. PW125/ B, report Ex. PW125/C , letter Ex. PW125/D and has proved the documents already proved by the other witness.
PW126 Sh. S.K. Gupta has deposed orally.
PW127 Sh. D.N. Taneja has proved the documents already proved by the other witness.
PW128 Sh. S.K. Dhawan has proved the documents already proved by the other witness.
PW129 to PW131 are given up by the prosecution as unnecessary.
PW132 Sh. Narender Masand has proved the entries relating to Simplex Traders Ex. PW132/B, entry dated 25.04.84 at Sr. No. 145 Ex. PW132/C and has proved the document already proved by the other witness.
PW133 Sh. B.R. Bhatt has proved the seizure memo Ex. PW133/A. PW134 Sh. Harender Pal Singh has proved the seizure memos Ex. PW134/A1 to A12, carbon copies of the FIRs Ex. PW134/B1 and Ex. PW134/B2.
C C No.29/10 36/250 37
PW135 Sh. Jugal Kishore has proved the pointing out memo Ex. PW135/A .
PW136 & PW137 have given up by the prosecution as unnecessary.
PW138 Sh. Sohan Singh Kalra has proved the documents already proved by the other witness.
PW139 Mrs. Ritinder Kaur has proved payinslips Ex. PW139/A1 to A3, pay in slips Ex. PW139/B1 to B5, Cheuqe dated 13.03.84 Ex. PW139/C1, 21.03.84 Ex. PW139/C2 and has proved the documents already proved by the other witness.
PW140 Sh.Vijay Kumar Nagpal has proved the documents already proved by the other witness.
PW141 Sh. Satinder Singh Ahuja has proved pay in slip Ex. PW141/A and has proved the other documents already proved by the other witness.
PW142 Sh. Ram Kumar Verma has proved the documents already proved by the other witness.
PW143 Sh. B.H. Ajwani has proved the list dated 03.01.1984 Ex. PW143/A1, slip dated 14.04.1984 Ex. PW143/B and dated 22.03.1984 Ex. PW143/C and has proved the documents already C C No.29/10 37/250 38 proved by the other witness.
PW144 Sh. Om Prakahs Girhotra has proved the documents already proved by the other witness.
PW145 Sh. B.N.P. Azad has proved the documents already proved by the other witness.
PW146 Sh. A.K. Hargava has proved the document already proved by the other witness.
PW147 Sh. S.R. Aggarwal has proved FIR Ex. PW147/1, charge sheet Ex. PW147/2, documents/seizure list/pointing out memo and recovery memo are Ex. PW147/3 to Ex. PW147/38, seizure memo Ex. PW147/39, production memo Ex. PW147/40, document Ex. PW147/41, the document produced by Sh. A.d. Chawla 'Ex. PW147/42, search memo Ex. PW147/43, search memo Ex. PW147/44 and has proved the documents already proved by the other witness.
DEFENCE OF ACCUSED & DEFENCE EVIDENCE.
24 Statement of the accused persons U/s 313 Cr PC recorded wherein Accused Vipin Kumar, Chaman Kumar and Raman Kumar have refuted the prosecution evidence produced against them and stated that they are innocent and they have been C C No.29/10 38/250 39 falsely implicated in this case.
25 Accused KB Mehta has stated that he does not know about the transaction in the account of M/S Vishal Plastic. However, Raman Kumar was residing in his neighbourhood and Vipin was introduced to him by him as his friend. The introduction of the account was made on the form as an account was to be opened in Chandni Chowk Branch of SBI where he had an account. The introduction was made by him innocently. He further stated that he is innocent.
26 In his defence accused persons have examined DW 1 Jagphool Rana, DW2 Sanjay Sharma, DW3 Satbir Parasar, DW4 Chaman Kumar and DW5 Deepak Jain has proved his report Ex.PW 5/A and 272 enlarged photographs Ex. DW5/3 (collectively. PROSECUTION ARGUMENTS 27 Ld. SPP Sh. T P Sinha referring the statements of all the147 witnesses produced by prosecution and documents proved by the prosecution argued in detail that prosecution has proved its case against all the accused beyond reasonable doubts. I am not incorporating his detail arguments in this judgment on account of brevity however I will consider all arguments raised by him at the C C No.29/10 39/250 40 relevant places in this judgment.
DEFENCE ARGUMENTS 28 Accused Raman Kumar and Chaman Kumar filed their detailed written arguments. They have also filed their additional written arguments. Their Ld. CounselSh. Bharat Dubey has also addressed his oral arguments on behalf of both the accused. Accused Chaman Kumar has also himself addressed his arguments in addition to the arguments raised by his counsel. As their written arguments and their additional written arguments are already on record and they have elaborated the same during the course of oral arguments hence on account of brevity I am not incorporating their arguments in this judgment , however, I will consider all arguments raised by them at the relevant places in this judgment. 29 Sh. V N Ojha, Ld. Defence Counsel for accused Vipin Kumar Sharma has filed his detailed written submission and also addressed his oral arguments elaborating the written submission filed by him. As the written arguments are already on record and he has elaborated the same during the course of oral arguments hence on account of brevity I am not incorporating his arguments in this judgment , however, I will consider all arguments raised by him at C C No.29/10 40/250 41 the relevant places in this judgment.
30 Ld. Defence Counsel Sh. S P Manocha for accused K B Mehta has not filed any written submission but he has addressed oral arguments. He has argued that accused K B Mehta has innocently introduced accused Vipin Kumar Sharma for opening account No.3/47300 on 5.3.84 in Chandani Chowk Branch of SBI in the name of M/s Vishal Plastic Enterprises. This account remained inoperative even according to PW51 produced by prosecution. No amount was withdrawn from this account, thus bank has not suffered any wrongful loss because of opening of this account on the introduction of accused K B Mehta. It is argued that investigating agency has not charge sheeted many other persons as accused who had introduced opening of account by accused Vipin Kumar Sharma in the similar circumstances. Placing reliance on State of MP Vs Sheetla Sahai 2009 (4) CCC (SC 220) argued that on the ground of parity accused K B Mehta is also entitled for acquittal in this case. Ld. Defence Counsel placing reliance on Ms. Shreya Jha Vs. CBI, 2008(1) CC (HC) 346 further argued that in a case of criminal conspiracy agreement to commit an offence and link/nexus of accused with that agreement is a must which C C No.29/10 41/250 42 prosecution has failed to prove in this case. It is argued that accused K B Mehta may be acquitted.
WHETHER REPORT OF HANDWRITING EXPERT AND HIS EVIDENCE CAN BE RELIED UPON 31 It is argued on behalf of accused Raman Kumar, Chaman Kumar and Vipin Kumar that neither report of Handwriting Expert S C Mittal Ex PW125/A and Ex PW125/C can be looked into nor his evidence can be relied upon. It is argued that Sh. S C Mittal cannot be termed as Handwriting Expert because he is having no special qualificlation in the science of handwriting. His evidence is full of contradictioins hence cannot be relied upon. He has been trapped while demanding and accepting bribe for giving favourable report to some accused. Even according to his report he has not been supplied with sufficient material to compare with the questioned writings, thus his report cannot be relied upon on this count also. It is argued that Sh. S C Mittal has appeared as witness in several criminal cases on behalf of prosecution hence he is a stock witness.
32 It is argued that specimen signatures/writings of C C No.29/10 42/250 43 accused were taken illegally by the IOs during the investigation without permission of the court. Even identity of accused whose specimen signatures/writings has been taken is not established. 33 Ld. Defence Counsel for accused no.3 argued that he has produced Handwriting Expert Deepak Jain as DW5 who has examined disputed writings/signatures at mark Q97 to Q229, Q231 to Q298, Q286 and compared the same with admitted/specimen signatures and writing marked S46 to S72, A36 to A58 and opined in his report Ex.PW 25/A that the signatures at above said points are not of A3, thus in view of conflicting report/evidence, report of PW125 S C Mittal cannot be relied upon. It is argued by Ld. Defence Counsels that CFSL where PW125 S C Mittal was working , is under the control of Director, CBI, hence he is bound to give report in favour of CBI, therefore, his report may be disbelieved on this account also.
34 It is argued on behalf of accused Chaman Kumar that alleged specimen writing/signatures are not of his but the IO had taken specimen writing/signatures of some Ashok Kumar out of the 9 Ashok Kumars who has been cited as witness by the Investigating Agency but has not been examined or out of the three Ashok C C No.29/10 43/250 44 Kumars whose houses were searched by CBI during the investigation but have not been produced in the witness box. It is argued that in these circumstances report of Handwriting Expert cannot be relied upon against accused chaman Kumar because he had not compared the questioned writings with the specimen writing of present accused Chaman Kumar.
35 Specimen writings of accused Raman Kumar and Vipin Kumar were taken in presence of PW26 M L Narang who has specifically deposed that specimen signatures of Raman Kumar and Vipin Kumar were taken in his presence. He has also correctly identified them in the court as the persons whose specimen signatures and writings were taken in his presence on Ex PW26/C1 to Ex PW26/C27. He has been cross examined at length. In his cross examination he has stated that he came to know their names during the proceedings. He has stated that accused were told to write certain words at random without showing any documents. Accused had written on sheets encircled with blue. He has denied the suggestion that no specimen signatures were taken in his presence but he had put his signatures on the asking of CBI. C C No.29/10 44/250 45 36 PW25 Y M Soni has stated that on 14.7.86 specimen writing of Raman Kumar was taken by CBI officer on four sheets which are Ex.PW 25/A1 to A4. He has been cross examined on behalf of accused Raman Kumar and Chaman Kumar. His entire cross examination is as under:
"So far as I know said Raman Kumar was not an employee of New Bank of India. I do not have any knowledge about the facts of this case."
37 From the above cross examination of this witness it is clear that there is nothing on the record to disbelieve the statement of this witness.
38 PW 26 Sh. M L Narang has specifically stated that specimen writing/signatures of accused Raman Kumar Ex PW26/B1 to B7 and Ex PW25/A1 to A4 and of Vipin Kumar Ex PW26/C1 to C27 were taken in his presence. This witness has correctly identified both accused Raman Kumar and Vipin Kumar in the court as the persons whose handwriting/signatures were taken by the IO. This witness has been cross examined at length on behalf of both the accused but nothing such has come out in his cross examination to disbelieve the above version given by him. C C No.29/10 45/250 46 39 PW25 Sh. Y M Soni has also stated that writing/signature of accused Raman Kumar were taken by CBI on 4 sheets Ex.PW 25/A1 to A4. He has been cross examined on behalf of Raman Kumar. Nothing such has come out in his cross examination to disbelieve his statement. In these circumstances there is no merit in this argument that specimen handwriting taken by the IO during the investigation is not of accused Raman Kumar and Vipin Kumar.
40 PW40 Sh. R P Malhotra has stated that specimen signatures were taken on sheets Ex PW40/D1 to D34 in his presence. These sheets also bears his signatures. These sheets bears the specimen writing and signatures of accused Chaman Kumar. 41 PW124 Sh. U B S Sodhi has stated that he had obtained the specimen signatures/writings Ex PW40/D1 to D34 of accused Chaman Kumar wihout any allurement, threat or promise. He has been cross examined on behalf of accused Raman Kumar and Chaman Kumar. His entire cross examination is as under:
"It is wrong to suggest that accused Raman and Chaman did not make any disclosure statement or that I obtained their signatures on blank papers and subsequently converted those blank papers into C C No.29/10 46/250 47 disclosure statement."
42 From the cross examination of PW124 U B S Sodhi it is clear that not even a single suggestion has been given to him that specimen writing/signature are not of Chaman Kumar or his specimen writings/signatures were taken forcibly. No cross examination on a substantive point amounts to admission of the same.
43 Chaman Kumar has appeared as his own witness U/s 315 Cr PC as DW4. In his statement on oath, given U/s 315 Cr PC he has admitted that his finger prints and handwriting were taken by the IO on blank sheets. Relevant portion of his statement in this regard is as under:
"My finger prints and handwriting in which "Chaman Kumar s/o Radhey Lal, R/o Z7. Model Town" and my signatures were obtained on blank sheets."
44 Thus taking of specimen signature of accused chaman Kumar by PW124 prove beyond reasonable doubts. 45 It is correct that specimen handwriting of all the accused were taken by the IOs during the Investigation of this case without permission of the court.
C C No.29/10 47/250 48 46 Ld. Defence Counsels argued that this is a grave illegality . Specimen writings such taken by the IO cannot be relied upon. In support of his arguments Ld. Defence Counsel placed reliance on State of Haryana Vs. Jagbir Singh and another, AIR 203 Supreme Court 4377.
47 A bench of 11 judges of Hon'ble Supreme Court in State of Bombay Vs. Kathikalu AIR 1961 SC 1808in this regard has held as follows:
"Testimonial compulsion - Obtaining specimen writing and thumb inpression from accused - Statement of accused in police custody used in evidence - If contravene constitutional guarantee - Constitution of India, Article 20 (3).
Section 73 of the Indian Evidence Act empowers the court to obtain specimen writing or finger impression of an accused person for purposes of comparison .
Section 5 and 6 of the Identification of Prisoners Act empowers a Magistrate to obtain the photograph or measurements of an accused person. Section 27 of the Indian Evidence Act permits the reception in evidence of statements made by an accused person in police custody which lead to a discovery. It was C C No.29/10 48/250 49 contended by accused persons that the obtaining of evidence in any of these ways ammounted to compelling the person accused of an offence "to be a witness against himself" in contravention of Article 20 (3) of the Constitution. It was further contended that it was implicit in the fact that the accused was in police custody when the specimen signatures or thumb impression etc. were obtained that compul was used.
Held, that there was no infringement of Article 20 (3) of the Constitution in compelling an accused person to give his specimen handwriting or signature, or impressions of his thumb, fingers, palm or foot to the investigating officer or under orders of a court for the purpose of comparison.
Held, further, that the provision of Section 27 of the Indian Evidence Act did not offend Art. 20 (3) unless compulsion was used in obtaining the information. Compulsion was not inherent in the receipt of information from an accused person in the custody of a police officer; it will be a question of fact in each case to be determinsed by the court on the evidence before it whether compulsion had been used in obtaining the information."
48 Hon'ble Supreme Court in a recent Judgment Ravinder C C No.29/10 49/250 50 Kumar Pal @ Dara Singh Vs. Republic of India, AIR 2011 SC 1436 has held that taking of specimen signatures and writing of accused for examination by experts during the investigation is proper and report of Expert based on such signatures/writings can be used as evidence against the accused. Relevant portion of Para No.35 of this authority is as under:
" Another question which we have to consider is whether the Police (CBI) had the power under the Cr.PC to take specimen signature and writing of A3 for examination by the expert. It was pointed out that during investigation, even the Magistrate cannot direct the accused to give his specim signature on the asking of the police and only in the amendment of the Cr PC in 2005, power has been given to the Magistrate to direct any person including the accused to give his specimen signature for the purpose of investigation. Hence, it was pointed out that taking of his signature/writings being per se illegal the report of the expert cannot be used as evidence against him. To meet the above claim, learned Addl. Solicitor General heavily relied on a 11Judge Bench decision of this court in the State of Bombay V. Kathi Kalu Oghad and Ors. (1962) 3 SCR 10: AIR 1961 SC 1808. This larger Bench was C C No.29/10 50/250 51 constituted in order to reexamine some of the propositions of law laid down by this Court in the case of M P Sharma & Ors. Vs. Satish Chandra, District Magistrate, Delhi and ors., (1954) SCR 1077: (AIR 1954 SC 300). ."
49 After discussing the matter in detail Hon'ble Supreme Court has concluded as follows:
"In view of the above principles, the procedure adopted by the investigating Agency, analysed and approved by the trial court and confirmed by the High Court, cannot be faulted with. In view of oral report of Rolia Soren , PW4 which was reduced into writing, the evidence of PW23, two letters dt. 01.02.2002 and 02.02.2002 addressed by Mahendra Hembram (A3) to the trial Judge facing his guilt coupled with the other materials, we are unable to accept the arugment of Mr. Ratnakar Dash, learned Senior Counsel for Mahendra Hembram (A3) and we confirm the conclusion arrived by the High Court."
50 In this regard a division bench of Hon'ble High Court of Delhi in Vipin kumar Vs State 139 (2007) Delhi Law Times 470 (DB) has held as follows;
"Indian Penal Code, 1860 Sections 120B, 364A, 302, 201 - C C No.29/10 51/250 52 Criminal conspiracy, Kidnapping for Ransom, Murder, disappearance of Evidence - Circumstantial Evidence - Kidnapping and murder of boy aged 8 years, student of second class for ransom of Rs. 3 lacs - Appreciation of EvidenceIdentity of accused established as being person last seen alongwith R and child - Once witness correctly identifies accused persons as perpetration of crime in Court and /or at police station factum of identification stands established - Articles recovered at instance of accused in presence of public witnesses Handwriting on ransom note, on envelope and another ransom note was in handwriting of accused as stated by Hand Writing Expert - FIR lodged soon after receipt of first ransom letter and second ransom letter handed over to police in quick succession Chain of circumstances unerringly points towards guilt of accused - No error in reasoning and judgment of Trial Court
- Conviction upheld."
51 In view of above discussion coupled with the law laid down by a bench of 11 judges of Hon'ble Supreme Court this court is of opinion that there is no illegaility in taking of specimen writing/signatures of accused by the IO during the investigation of this case without permission of the court and the same can be relied C C No.29/10 52/250 53 upon for comparison with the questioned writings/signatures of accused by the Handwriting Expert.
52 PW125 Sh. S C Mittal has stated that he is MSC, PhD in Chemistry. He had joined CFSL in the year 1970. He had received two years Extensive and Systematic Training in all aspects of questioned documents examination. He has examined and given opinion in more than 2500 cases consisting of several thousands exhibits and has appeared as expert witness in more than 1200 courts. He had examined the questioned documents in this case with the help of various scientific instruments available in the CFSL and his reports are Ex.PW 125/A and Ex.PW 125/C. In his cross examination he has further stated that he had done one year Certificate Course in Forensic Science from Department of Anthropology in the year 1971 wherein handwriting science was also a subject. Besides it he has received two years in House Training in Documents examination at CFSL. In these circumstances this court is of opinion that he has special training and long experience in examination of questioned documents/handwriting thus certainly he is an Handwriting Expert. 53 Accused No.3 Vipin Kumar has produced DW 5 Sh. C C No.29/10 53/250 54 Deepak Jain, Handwriting Expert who has given report in his favour. He has given his qualificlation as BSc and stated that he had obtained one year certificate in Forensic Science from Delhi University in the year 198788 and obtained practical training for about two years in the office of Mr. R K Vij. He has given opinion in more than 2500 cases. In his cross examination he has stated as follows:
"I have my office in the premises of Tis Hazari Courts itself. I am having magnifying lenses of different magnification, low power microscope, different measuring devices, colored corrected filters. I have no video Spectoral Comparator in my office. I do not know what could be the approximate price of this machine. I do not know if the machine in question had a price of Rs. 50 lacs or not. It is correct that I have not compared the questioned handwriting with the specimen writing with VSC. It is correct that VSC is one of the latest device for comparing the handwriting, however it is not the only device by using which one can reach to correct conclusion."
54 From the above discussion it is clear that Handwriting Expert PW125 Sh. S C Mittal is better qualified than DW5 Sh. S C Mittal is having better experience in comparison to DW5 Depak C C No.29/10 54/250 55 Jain. Sh. S C Mittal has used better scientific instruments than used by DW5 Deepak Jain, thus report of Sh. S C Mittal is more reliable in comparison to the report given by DW5.
55 A division bench of Hon'ble High Court of Himachal Pradesh in Gulzar Ali Vs. State of Himachal Pradesh 1995 Crl. Law Journal 810 comparing the evidence given by a Govt. Examiner and a private Handwriting Expet has held that a private expert has a natural tendency to support the view of the person who had called him. The evidence of Govt. Examiner is more reliable in such circumstances. Relevant portion of Para No.17 of this authority is as under:
"Looking to the statements of these experts, proving their expert opinion, we prefer to depend on the opinion given by Sh. M L Sharma (PW20) Government Examiner on Questioned Documents. it is more satisfactory and satisfying. It is more reasonable and dependable. it is more scientific as compared to the opinion of Sh. N K Jain (DW1), which is not so thorough and convincing. it is neither reasoned nor satisfactory. There is natural tendency on the part of the expert to support the view of the person whom had called him. It can, therefore, be said that there C C No.29/10 55/250 56 is sufficient material on the record for coming to the conclusion that the accused were conspiring with each other and the object of conspiracy was not only the family of jai Paul but also the deceased."
56 Ld. defence Counsels argued that evidence of handwriting expert cannot be relied upon without corroboration being the opinion only. In support of this argument they have placed reliance on following authorities:
Smt. Bhagwan Kaur Vs. Sh. Maharaj Krishan Sharma & Ors. (1973) 4 Supreme Court Cases 46, Magan Bihari Lal Vs. The state of Punjab (1977) 2 Supreme Court Cases 210, Mrs. Veenu Handa Vs. Narinder Kumar Handa AIR 1984 Punjab and Haryana 99, Alaf Hussain Vs. Nasreen Zahra AIR 1978 Allahabad 515 and Gulab Chand and another Vs. Satya Vrat and Others, AIR 1983 Allahabad
54.
57 Hon'ble Supreme Court in Murari Lal Vs. State of Madhya Pradesh (1980) 1 Supreme Court Cases 704 with regard to evidenciary value of Handwriting Expert Report and its corroboration by other evidence has held as follows:
"Evidence Act, 1872 - Sections 45, 46, 73 and 3 - Evidence C C No.29/10 56/250 57 of handwriting expert - Held, need not be invariably corrborated - It is for the Court to decide whether to accept such an uncorroborated evidence or not - Court should approach the question cautiously and after examining the reasonings behind the expert opinion and considering all other evidence should reach its conclusion - Even where there is no expert court has power to compare the writings itself and decide the matter - On facts, courts below on such comparison concurring with the exper's view and the defence raising no doubts against the reasons given by the expert for his opinion - Held, opinion evidence acceptable without any corroboration."
58 Similar view has been taken Hon'ble Supreme Court in Ram Narain Vs. Uttar Pradesh AIR 1973 SC 2200 wherein it is held as follows:
"Both under Section 45 and Section 47 the evidence is an opinion in the former by a scientific comparison, and in the latter on the basis of familiarity resulting from frequent observatrions and experience. in either case the Court must satisfy itself by such means as are open that the opinion may be acted upon. One such means open to the Court is to apply its own observation to the C C No.29/10 57/250 58 admitted or proved writings and to compare them with the disputed one, not to become a handwriting expert but to verify the premises of the expert in the one case and to appraise the value of the opinion in the other case. This comparison depends on an analysis of the characterstics in the admitted or proved writings and the finding of the same characterstics in large measure in the disputed writing. In this way the opinion of the deponent whether expert or other is subjected to scrutiny and although relevant to start with becomes probative. Where an expert's opinion is given, the Court must see for itself and with the assistance of the expert come to its own conclusion whether it can safely be held that the two writings are by the same person. This is not to say that the Court must play the role of an expert but to say that the Court may accept the fact proved only when it has satisfied itself on its own observation that it is safe to accept the opinion whether of the expert or other witness."
59 It is argued that S C Mittal had been trapped in a case while demanding and acccepting bribe for giving favourable report to some accused, hence his report cannot be relied upon. 60 There is no evidence on the file that PW S C Mittal has been convicted in the alleged trap case. Every accused is presumed C C No.29/10 58/250 59 to be innocent till he proved to be guilty. Even otherwise, Maxim falsus in uno falsus inomnibus is no longer applicable in India. Even if a witness has been disbelieved in one case still his evidence in other case will be considered on its own merit. Evidence of such witness cannot be disbelieved merely on the ground that such witness has been disbelieved in some other case. It is correct that qua some questioned wrtings this witness has not given his opinion on the ground that sufficient material was not provided to him for comparison qua those points, but on this ground opinion of this witness cannot be disbelieved qua the questioned writings for which he has given a definite opinion. It is correct that CFSL is also under the overall administrative control of Director CBI, but it is an independent unit. Merely on this ground, evidence of this witness cannot be disbelieved. Handwriting Experts used to appear in several cases as witness but because of his several apearance in criminal cases as prosecution witness handwriting expert cannot be considered as a stock witness of prosecution. In view of above discussion there is no merit in all these arguments raised on behalf of accused.
61 In view of above discussion this court is of opinion that C C No.29/10 59/250 60 specimen writings/signatures of all the accused in this case were legally obtained by the IO during the investigation which were rightly used by PW125 S C Mittal, Handwriting Expert for comparing with the questioned writings/signatures. PW125 S C Mittal is a competent Handwriting Expert/examiner of questioned documents. His evidence and report given in this case is authentic and reliable.
SANCTION & PUBLIC SERVANT 62 In this case accused Raman Kumar who was the then working as clerk in SBI, Parliament Street Branch is the only public servant. PW36 Sh. H V Rangaswami has granted sanction for the prosecution of accused Raman Kumar in this case. He has stated that during the period 1984 to 1986 he was posted as Chief Regional Manager, SBI, Delhi Region. He was competent to sanction for the prosecution of accused Raman Kumar. He has also stated that he had found that Raman Kumar had tampered with the instruments which had been prsented by his accomplice in Punjab & Sind Bank branches and United Commercial Bank branches drawn on SBI. Immediately thereafter Raman Kumar was suspended and enquiry C C No.29/10 60/250 61 was conducted. He has proved sanction order Ex PW36/A passed by him under his signatures. He has been cross examined at length on behalf of accused Raman Kumar and Chaman Kumar. In his cross examination he has denied the suggestion that sanction was accorded by him for the prosecution of accused Raman Kumar without looking into the documents and without application of his mind on mere asking by CBI Officers. Nothing such has appeared in his cross examination to disbelive his statement. 63 I have also gone through the sanction order Ex PW36/A. It is a detaiiled order running in five pages having all the material facts of this case.
64 Hon'ble Supreme Court has held that where the sanction order itself is a speaking order in such circumstances it is not necessary to prove it by leading evidence that sanctioning authority has applied his due mind. Reliance is placed on C S Krishnamurthy Vs. State of Karnataka 2005 IV AD (S.C.) 141 wherein in para No.9 it is observed as follows:
"Therefore, the ratio is sanction order should speak for itself and in case the facts do not so appear, it should be proved by leading evidence that all the particulars were placed before the C C No.29/10 61/250 62 sanctioning authority for due application of mind. In case the sanction speaks for itself then the satisfaction of the sanctioning authority is apparent by reading the order. In the present case, the sanction order speaks for itself that the incumbent has to account for the assets disproportionate to his known source of income. That is contained in the sanction order itself. More so, as pointed out, the sanctioning authority has come in the witness box as witness No.40 and has deposed about his application of mind and after going through the reports of the Superintendent of Police, CBI and after discussing the matter with his legal department, he accorded sanction. It is not a case that the sanction is lacking in the present case. The view taken by the Additional Sessions Judge is not correct and the view taken by learned Single Judge of the High Court is justified."
65 Granting of sanction is an administrative function, in this regard, Hon'ble Supreme Court in Superintendent of police (CBI) Vs. Deepak Chaudhary - 1995 SCC (Crl.) 1095 has held as follows:
''We find force in the contention. The grant of sanction is only an administrative function, though it is true that the accused may be C C No.29/10 62/250 63 saddled with the liability to be prosecuted in a court of law. What is material at that time is that the necessary facts collected during investigation constituting the offence have to be placed before the sanctioning authority and it has to consider the material. Prima facie, the authority is required to reach the satisfaction that the relevant facts would constitute the offence and then either grant or refused to grant sanction. The grant of sanction, therefore, being administrative act the need to prove an opportunity of hearing to the accused before according sanction does not arise. The High Court, therefore, was clearly in error in holding that the order of sanction is vitiated by violation of the principles of natural justice.''
66 In view of above discussion, this Court is of opinion that prosecution has proved valid sanction for the prosecution of accused Raman Kumar in this case.
67 Raman Kumar was an employee of State Bank of India during the relevant period and was working as Clerk in service branch of State Bank of India, Parliament Street, New Delhi. Service Branch of State Bank of India gets all the cheques deposited in different branches of SBI in Delhi Region and drawn upon C C No.29/10 63/250 64 different banks and then transmit the same to RBI Clearing House, where cheques drawn upon SBI and cheques drawn upon other banks were exchanged among different banks. The Banks thus exchanged the cheques and the cheques drawn upon SBI branches were brought to SBI Service Branch which in turn was required to send the cheques to its branches concerned which should honour or dishonour the cheques subject to availability of funds in accounts concerned. It was the duty of Raman Kumar to type out a list of the cheques drawn upon different branches of SBI, Delhi Region. 68 Accused Raman Kumar in furtherance of criminal conspiracy with his co accused had the knowledge as to which cheque drawn upon SBI was deposited in which bank/branch other than SBI thus, he was in position to remove those cheques which were presented by his coaccused namely Chaman Kumar and Vipin Kumar in their A/c at PSB Gujaranwala and other branches of PSB and UCO Bank, Kamla Nagar and Subzi Mandi. According to prosecution accused Raman Kumar while preparing the list used to destroy or remove few cheques of his choice in conspiracy with accused Chaman Kumar, who is his brother, accused Vipin Kumar and accused K. B. Mehta, drawn upon SBI Branches but deposited C C No.29/10 64/250 65 in banks other than SBI through payinslip. As a result the cheques drawn upon SBI Branches could not reach the concerned branches thus had no scope for the SBI branches to determine if there was sufficient fund in the account concerned to honour the cheques or not.
69 Accused Raman Kumar had opened two accounts one with SBI Connaught Place A/c No.7239 (D134) and the other with Punjab & Sind Bank (to be referred hereinafter as PSB Gujranwala Branch, Delhi) having A/c No.3040. Accused Raman Kumar opened account No.3040 (D41) in Punjab & Sind Bank, Gujranwala Town, Delhi furnishing address B121 Gujranwala Town, Delhi which was was introduced by Shri R. Gupta. Statement of A/c is Ext 28/F1(D42) qua which cheque leaf lets No. 440476 to 44050 were issued.
70 In this regard relevant portion of statement of PW8 Sh. Rakesh Gulati is as under:
"In the year 1981 I was unemployed. I know Raman Kumar accused present in the court (correctly identified). Sometimes in the year 1979 80, I used to go in a Video Parlour and there I met accused Raman Kumar where he used to C C No.29/10 65/250 66 distribute tokens for playing Video games. During said period accused Raman Kumar requested me to opening of the saving bank in Punjab & Sind Bank, Gujranwala Town, Delhi, since I knew him I agree to sign the Account opening form as introducer. I have seen Account opening form Ex PW 8/1. It bears my signature at point A as an introducer. Raman Kumar signed the Account opening form of account in my presence. At that time, I was having saving account no.611 in the same bank."
71 In this regard relevant portion of statement of PW12 Sh. Ranjit Singh is as under:
72 In the year 198384 I was posted as an officer in Punjab & Sind Bank, Gujanwala Town Branch . I have seen account opening Ex PW8/A pertaining to account No.3040 in the name of Shri Raman Kumar.
73 Ex PW12/A is the original clearing register of Punjab & Sind Bank, Gujranwala Town Branch for the period wef 12.9.83 till 20.10.83. In this register entry No.18 dated 14.9.83 relates to a cheque received from Raman Kumar. SB account No.3040 worth Rs.70000/ drawn at State Bank of India. C C No.29/10 66/250 67 Aforesaid entry is Ex P.W.12/B and it bears my initials as a checking officer. Whenever a cheque sent in clearing is returned back dishonored again entry mark returned is mentioned . Such remark is not mentioned against entry Ex PW12/B. Ex PW12/C is the pay in slip regarding the deposit of cheque worth Rs.70000/ by Raman Kumar . This pay in slip is initialed by me as a checking officer. The details of cheque are not mentioned in the pay in slip.
74 I have seen original clearing register of Punjab & Sind Bank, Gujranwala, Town N Delhi containing entry wef 3.2.84 till 6.3.84. Said register is Ex PW12/D. This register contains entry Ex PW12/E at Serial No.36 relating to 50 recipts of one cheque from Raman Kumar, SB account No.3040 for Rs.65,000/ . As per entry drawer of cheque is Deepati Financiers and drawing bank is State Bank of India South Extension, New Delhi . There is no remark regarding the return of cheque a dishonored against this entry. This entry was checked by me. I have seen pay in slip Ex PW12/F relating to deposit of cheque worth Rs. 65,000/ in the account of Raman Kumar , account No.3040 . C C No.29/10 67/250 68 This pay in slip bears my initial as checking officer. Particulars of cheque are not fully written in pay in slip . Only fact mentioned in SBI New Delhi.
75 PW13 hads identified the signatures & handwriting of accused Raman Kumar. In this regard relevant portion of statement of PW13 Sh. Jitender Pal Singh is as under:
" During the period in which myself and accused Raman Kumar were posted in SBI, Chandni Chowk, on one occasion there has been shortage of cash. I can identify the signature of accused Raman Kumar as I have seen him writing and signing. I have seen pay in slip Ex PW 12/C. It bears the signature of accused Raman Kumar . I cannot identify the other writing in pay in slip, as that of Raman Kumar I have seen cheque Ex PW 13/A to Ex PW 13/F in the court file. All these cheques are executed by accused Raman Kumar., whose signatures I identify. I have seen the leave application of Raman Kumar seeking leave with effect from 29.3.84 to 5.4.84. It is in the handwriting of Raman Kumar and bears his signature. Said application is Ex PW 13/B."
76 In this regard relevant portion of statement of PW62 Sh. Manjeet Singh is as under:
C C No.29/10 68/250 69
" This is he specimen signature card of account no. 3040 of Raman Kumar already marked Ex PW28/G1. I find from the record that the account opening form of the account holder is not readily enclosed in the bunch of the original papers. This is the ledger sheet in original of account No. 3040 of Raman Kumar which is maintained in original course of banking business bearing all the deposits and withdrawals are recorded on that day that the transaction take place. Document already marked F. I have perused the original cheques bearing No. 440483, 440486. 440488, 440489, 440490, already marked Ex PW13/A. Ex PW13/F, Ex PW13/C, Ex PW13/D and Ex PW13/E. These cheques were passed for payment by the officer Incharge of the Saving Bank Account and were also approved by me as Branch Manager. The payment of these cheque have been reflected in the ledger sheet of the account concerned. This is the account opening form in respect of Saving Bank account No. 3918 in the name of Chaman Kumar which was introduced by Raman Kumar holding an account No. 3040 in our bank branch properly introduced by an officer concerned and allowed to be opened by myself. This is that account opening form mark Ex PW28/H1. Likewise this is the specimen signature of account no. C C No.29/10 69/250 70 3918 of Mr. Chaman Kumar which bears my endorsement left blank. The document is already Ex PW28/G2. The bank maintained a ledger account of the said account 3918 showing the all the details of transaction. Already mark Ex PW28/F2. These five pay in slips under Ex PW12/1, Ex PW12/D2, Ex PW12/M, Ex PW12/O and Ex PW12/C4 bear my initial and signature in token of having dealt with the same in course of countersigning. these eleven cheques under Ex PW28/E1, Ex PW28/E4, Ex PW28/E5,E10,E12, E15, E17,E22,E23,E24 bear my counter signature in token of having allowed the withdrawls."
77 Accused Raman Kumar was working in Canara Bank prior to his joining SBI. He was removed from Canara Bank. In this regard relevant portion of statement of PW91 Sh. Ram Singh Setia is as under:
" I know accused Raman Kumar accused present in the Court as he was my friend. I started knowing him during our college time through our common friend Amarjeet Singh. accused Raman Kumar used to reside at Model Town. Before joining bank I joined Bajaj Capital Investment. accused Raman Kumar joined SBI. Before joining SBI he joined some other bank. He told me C C No.29/10 70/250 71 that he has joined SBI as it was a better bank. I issued a character certificate to him. While issuing the character certificate I did not know that Raman Kumar had been removed from Canara Bank. About 20 years back I identified the signature of Raman Kumar. I have seen Account opening form Ex P25 and on this form I have signed as introducer at point A. This Account opening form is in the handwriting of Raman Kumar. I have seen the specimen signature card Ex P26 of Raman Kumar and it bears his signature at three places. I have seen Ex P25 to P28. The same bear the signature of Raman kumar at point A. I have seen the personal file Ex PW 63/1 of Raman Kumar. In this file I cannot identify the writing but on page Ex P14 I can identify the signature of Raman Kumar at point A."
78 Accused Raman Kumar was posted in Service branch of SBI, Parliament Street and used to type the list of cheques. In this regard relevant portion of statement of PW14 Sh. Anil Kumar Magoo is as under:
" I joined State Bank of India on 1.7.1983. My initial posting was in the Service Branch, SBI, Parliament Street, New Delhi. I have seen the original Attendance Register of State C C No.29/10 71/250 72 Bank of India, Service Branch, SBI, Parliament Street, New Delhi containing the attendance record of various employees including myself as well as Raman Kumar. Raman Kumar mentioned in Attendance Register is one of the accused persons present in the court. (Witness has correctly identified accused Raman Kumar ). As per the entries in the Attendance Register Ex PW 14/A I was on duty on 9.3.84, 10.3.84, 13.3.84, 15.3.84,16.3.84, 22.3.84 and 24.3.84 during evening shift. As per the entries in the Attendance Register, accused Raman Kumar was also present on duty on those dates in the evening shift. Out of the seven persons, mentioned in the register, four persons used to do typing work and others used to do sorting work of cheques received from RBI on branch wise basis. The floor incharge used to collect the inward clearing. As per procedure after the clearing house in the Reserve Bank of India, the cheques drawn at State Bank of India used to be sent to the service Branch alongwith a detailed statement of those cheques prepared at Reserve Bank of India/ Ex PW 14/B to Ex PW 14/E are the Reserve Bank Settlement Statements received by our service Branch on various dates alongwith the cheques. Entry No. 31 in Ex C C No.29/10 72/250 73 PW 14/B list dt. 9.3.84 relates to cheques which were delivered by Punjab & Sind Bank. Similarly, respective Entry No. 31 in the lists Ex PW 14/C and Ex PW 14/D relates to the cheques delivered in the clearing house by Punjab & Sind Bank. In the lists Ex PW 14/E Entry No. 31relates to the cheques delivered by Punjab & Sind Bank. Ex PW 14/F is the original list pertaining to the cheques received from RBI in clearing house on 9..84.".....
..." As per procedure, the inward clearing cheques received from RBI, used to be detailed in a type list prepared on the same day, in regular course of business. I have seen type list dt. 10.3.84 Ex PW 14/G. Encircled handwriting X on this type list is of accused Raman Kumar , which I identify. however, signature on type list are not of Raman Kumar. I have seen encircled endorsement X1 on type list Ex PW 14/H dt. 13.3.84. Said handwriting is that of accused Raman Kumar which I identify.".....
79 In this regard relevant portion of statement of PW40 Sh.R P Malhotra is as under:
" In the year 198384 I was working as Branch Manager, Service Branch, State Bank of India, Parliament Street, New Delhi. C C No.29/10 73/250 74 I continued in that position till 1988. I had taken charge from Branch Manager Sh. R L Sharma.
The Service Branch was a centralised department for clearing of cheques etc. The cheques received by other banks drawn on SBI were received by us through Reserve Bank of India. These were received alongwith list. These were balanced by the branch and then sorted out drawee branchwise. Then these were listed branchwise and should have been balanced with the amount received from other bank. Then these cheques alongwith list were sent to the drawee branches for payment or disposal. in case any cheque accused to be returned, the drawee branches used to send such cheques to our branch for returning them to the presenting bank through Reserve Bank of India and claiming credit thereon.
For outward clearing the cheques received by our branches of State Bank of India drawn on other bank were received by us alongwith lists. We used to consolidate the lists bankwise and present those cheques and lists to the concerned bank through Reserve Bank of India. A statement was also forwarded to Reserve Bank of India listing the amounts to be claimed from other concerned bank for the amounts of cheques drawn on them. C C No.29/10 74/250 75
They were feeded in the computer in Reserve Bank of India and thereafter credits or debits were afforded to us by the Reserve Bank of India as well as to all banks. The service branch of State Bank of India were given Code number which I do not exactly remember but it was probably 056. In the lists the code numbers were mentioned in front of mentioning the full names of banks. When I joined the branch of State Bank of India, Parliament Street, 4 groups had been allotted to it for doing the clearing work. These 4 groups were of the staff working in bank. These groups of employees were assigned duties to deal with the particular number of bank and branches. These were based on alphabetical orders. The 4 groups were in A to F, G to L, M to P and R to Z. These were groups in respect of our own branches. Different banks were also allotted to these groups for dealing with inward clearing.
I have been shown RBI inward clearing register Ex PW 40/A. My predecessor Sh. R L Sharma had issued the office order Ex PW 40/B, which bears his signature. I identify the same because he was predecessor and the entire record contains his signatures in many places. The signatures of Sh. R L Sharma are at point A on Ex PW C C No.29/10 75/250 76 40/B. This register was for the balancing of the cheques received from other bank and lodged by us on other banks. Figures received from RBI were incorporated in the register. And the net amount payable or receivable as the case may be was arrived at on daily basis.
I have seen page no.149 which is Ex PW 40/B1.
Accused Raman Kumar present in the Court ( Correctly identified) was in group M to P. When I joined the bank in 1984 I found that an amount of Rs. 2 crore was lying in suspense account, on account of non conciliation of the entires in the receipt aside of the register (Objected to). Suspense register not on record.
After taking over charge and finding the huge balance in suspense account, I changed the groups and also made certain other changes in the system. Afterwards I looked back as to why this amount was lying in suspense account. I engaged a computer agency to balance the negotiable instruments received by us and sent to other branches. From computer output, we came to know that there certain entries of round figures. The computer statements referred by me are Ex PW 40/C1 to Ex PW 40/C24 C C No.29/10 76/250 77 (sheets). On scrutiny of these computer sheets, that instrument which had round figures such as Rs.10,000/, Rs.20,000/ received from the banks were not tallied with numbers of instruments sent to the drawee branches. In particular we found that the instruments received from Punjab & Sind Bank, Gujranwala Town were not tallying with the umber of instruments sent to drawee branches. Then I deputed my officer to P & Sind Bank to find out the particulars of the instruments. Then we started exercise of tracing the reasons for the huge balance in suspense account, In this connection first of all we found the instruments given out by computer output were less more so far as the instruments were received from other bank. But the instruments were sent to branches were no of equal numbers but were less in numbers. At that time the particulars of instruments were not mentioned by the lodging banks and only amounts were mentioned and therefore, we collected the particulars of instruments actually received by our branches. Because of this exercise we come to know the number and particulars of the instruments which were found mentioned in the computer C C No.29/10 77/250 78 output but were not sent to the branches. We found that 23 instruments of round figures such as Rs.10,000/, Rs.20,000/ received from Punjab & Sind Bank, Gujranwala Town to find out the details of the instruments lodged by them, which were missing. From there we found out that no instrument of Rs. 10,000/, Rs.20,000/ had been lodged by them, but an instrument of Rs.70,000/ had been lodged in the relative date of credit. Thereafter we enquired from Punjab & Sind Bank, Gujranwala Town about particulars of account in which credit of Rs.70,000/ had been given and asked the name of our drawee branch. We found out that the credit had been afforded to the account of one Chaman Kumar. Then we examined the Account opening form of Chaman Kumar and came to know that accused Raman Kumar had introduced said account. The Account opening form is Ex PW 28/H1, which bears the signature of accused Raman Kumar at point. We also came to know that Raman Kumar had also account in the same branch. We scrutinised Raman Kumar's account also and found it huge fraudulent entries therein. in respect of clearing system. The C C No.29/10 78/250 79 total fraud was of Rs. 58 lacs which could be traced by us."
80 In his cross examination he has stated as follows:
" It is wrong to suggest that due to departmental pressure I signed the documents Ex PW 40/E, Ex PW 40/E1, Ex PW 40/F. Inspector Sodhi had asked me to sign Ex PW 40/E, Ex PW 40/E1 and Ex PW 40/F at point A. I never received any complaint from Floor Incharge, deputy Manager or any other officer working in my branch that some officials of the branch was tearing out, destroying or mutiliating any instrument. It is correct that the computer agency took the records which were furnished and then processed. Print out given by the computer agency on the basis of record made available by us, was given to CBI and one copy was retained in the branch. I did not hold any enquiry myself as to who accused responsible for the irregularities. I had informally discussed the matter with the floor incharge group incharge and clerks. I have not issued any show cause notice to any sub ordinate about their irregularity. I do not know and cannot deny that the account of accused Raman Kumar was an old account. It is wrong to suggest that I have deposed falsely against accused Raman Kumar under pressure of senior Officer of the bank in order to get to favour from C C No.29/10 79/250 80 them."
81 In this process accused Raman Kumar had also obtained two cheques worth Rs.70,000/ and Rs.65,000/ and deposited the same in his bank account at PSB, Gujrawala branch.
The receipt of Rs.70,000/ and Rs.65,000/ is clear from Ex 28/F1(D42) respectively under D.No.134 and D41 Exts. PW212/C and Ex PW12/D. The cheque for Rs.70,000/ bearing No.402481 Ex PW12/C (D43) was made over to him by accused Vipin Kumar who had received the cheque from SBI, Najafgarh Branch on opening the account No.14322 D9 Ex PW5/B in the assumed name of Naveen Kumar vide cheque book issue register Ex PW5/D. This cheque was deposited by accused Raman Kumar in his account No. 3040 PS Gujaranwala Town (D41 Ex PW8/A). The cheque No. has been shown in outward Clearing Register (D52) Volume I, page 7 Ex PW12/C1, which has been proved by PW12 Ranjeet Singh. 82 The other cheque for Rs.65,000/ bearing No.69 6337 was received by Raman Kumar from accused No.2 Chaman Kumar who had opened an account baring No.11661 in the assumed name of Ashok Kumar at SBI Jahangirpuri and had obtained chequeleaflets including Cheque leaflet No.696337. Accused C C No.29/10 80/250 81 Raman Kumar had deposited this cheque vide pay in slip (D44) in his account no. 3040 PS Gujaranwala Town (D41 Ex PW8/A). Cheque no. is clear from outward clearing register, D52, Vol.III, Ex PW12/Ewhich has been proved by PW12 Ranjeet Singh. 83 Accused Raman Kumar deposited two cheques in his bank account No.3040 at PSB Gujaranwala Branch vide payin slip Ex PW 12/C and Ex PW12/D (D43) and (D44 ).
84 The cheque for Rs.70,000/ bearing No.402481 was deposited in the account of accused Raman Kumar No.3040 PSB Gujaranwala vide pay in slip Ex.PW 12/C. This pay in slip has been filled in and signed by accused Raman Kumar himself. PW125 Sh. S C Mittal, has opined that signatures at point Q17 on this pay in slip Ex.PW 12/C is of accused Raman Kumar. He has also opined that writing on this pay in slip at point Q31 is also of accused Raman Kumar. No cheque no. has been mentioned in this pay in slip however the amount of cheque of Rs.70,000/ has been clearly mentioned in this pay in slip. PW13 has also identified the handwriting of accused on pay in slip Ex PW12/C. 85 Cheque No.402481 was obtained by accused Vipiin Kumar from account No. 14322 SBI Najafgarh opened in the C C No.29/10 81/250 82 assumed name of Naveen Kumar vide cheque book issue register Ex.PW 5/D. 86 The cheque for Rs.65,000/ bearing No.696337 was deposited in the account No.3040 PSB Gujaranwala of accused Raman Kumar vide pay in slip Ex.PW 12/D. No cheque no. has been mentioned in this pay in slip however the amount of cheque of Rs.65,000/ has been clearly mentioned in the pay in slip Ex PW12/D. Cheque No. 696337 was received by accused Chaman Kumar from account No.11661 SBI Jahangirpuri opened in the assumed name of Ashok Kumar vide cheque book issue register Ex.PW 2/C (D17).
87 Both These cheques were sent in clearing collection from PSB, Gujaranwala Branch vide its cheque Outward Clearing Register Ex.PW 12/C1 (D52) Vol. I, page 7 and Ex.PW 12/E D52, Vol. III. According to the evidence produced by prosecution both the original cheques drawn upon SBI were removed by accused Raman Kumar who put fictitious amounts equivalent to the cheques in transit and did not send both the cheques to the concerned Branch of SBI and the amount of both the cheques was credited in the account of Raman Kumar bearing No.3040 PSB, C C No.29/10 82/250 83 Gujaranwala Branch which is clear from statement of account Ex PW28/F1. Subsequently accused Raman Kumar withdrew the amount which is clear from the statement of account Ex PW 28/F1 vide 6 cheques issued by him which are Ex PW13/A to 13/F( D45). According to the report of Handwriting Expert PW125Sh. S C Mittal, six cheques Ex.PW 13/A to E also bears signatures and writings of accused Raman Kumar at point Q18 to Q26. These are the cheques issued by accused Raman Kumar. Cheques Ex.PW 13/C to E are the self cheques issued by acused Raman Kumar who had also received the payments of these cheques after signing at point Q22, Q24 and Q26. According to the report of Handwriting Expert signatures on all these points are of accused Raman Kumar. PW13 has also identified the handwriting on all these cheques. Accused no.2 Chaman Kumar and Accused no.3 Vipin Kumar had no sufficient amount for the honoring of the cheques given by them to accused Raman Kumar. Accused no.2 Chaman Kumar had outstanding balance of Rs 109.20 Paisa and accused no.3 Vipin Kumar had outstanding balance of only Rs. 166.82 Paisa at the relevant time.
88 It is argued on behalf of accused Raman Kumar that in C C No.29/10 83/250 84 his statement U/s 313 Cr. PC first question put to him that account No.11661 at Jahangirpuri Branch of SBI has been introduced by accused Raman Kumar but according to documents on the record this account No. in the name of Ashok Kumar was introduced by K L Kalra. It is a serious discrepency.
89 All the relevant documents with regard to account no. 11661 opened in the name of Ashok Kumar have already been supplied to all the accused. All the evidence in this regard was recorded in presence of all the accused. Thus, all the accused including accused Raman Kumar was well aware of the case of prosecution against him and the evidence produced by prosecution against him on the file. Accused has been represented by a competent counsel, in these circumstances because of this typing error no prejudice has been caused to accused Raman Kumar and Chaman Kumar in their defnece, hence there is no merit in this argument.
90 It is argued on behalf of accused Raman Kumar that according to the evidence of prosecution itself cheque of Rs. 65,000/ deposited in the account No. 3040 in the name of accused Raman Kumar in P S B Gujaranwala Town is drawn by Deepti C C No.29/10 84/250 85 Financers. It is argued that according to defence of accused this cheque was given to him by Deepti Financers and does not pertain to any other account except from South Extension Part I branch of SBI.
91 It is well proved on the judicial file that cheque No. 695337 was obtained by Chaman Kumar vide account No.11661 opened by him in assumed name of Ashok Kumar. in SBI Jahangirpuri Branch. In these circumstances there is no reason that cheque no. 695337 can be issued to any other person/firm like that of Deepti Financers from South Extension branch. The dishonest/malafide intention of the depositor of this cheque in the account No.3040 is apparent from the fact that cheque no. has not been mentioned in pay in slip. It is worth important to mention here that the numbers of all the 41 cheque have not been mentioned in the respective pay in slips in this case which have been malafidely removed and destroyed and credit of the amount mentioned in the cheques had been given in the respective accounts indicates that a well organised fraud was going on. After the amount was credited in the respective accounts the entire amount was siphoned off by the respective account holders. In these C C No.29/10 85/250 86 circumstances the person who had filled in the pay in slip Ex PW12/D vide which the cheque of Rs.65,000/ was deposited in the account no.3040 in the name of Raman Kumar has malafidely and dishonestly mentioned the name of drawer as Deepti Financers to conceal the fraud committed by him. It is reiterated that cheque in question was issued toChaman Kumar, brother of accused Raman Kumar, in his assumed name of Ashok Kumar vide account no. 11661. In these circumstances there is no merit in this argument. 92 It is argued that the cheque of Rs.70,000/ was mischievously deposited in the account of accused Raman Kumar by the senior officer of SBI to harass the accused Raman Kumar and to teach him a lession as he was a Union Leader and was raising voice against the management of the bank.
93 It is well proved on judicial file that accused Raman Kumar had withdrawn the entire amount of Rs. 1,35,000/ (Rs. 70,000 + Rs.65,000/) which was got credited in his account No. 3040 vide six cheques Ex.PW 13/A to F issued by him. Had this cheque of Rs.70,000/ was malafidely/ mischievously deposited by the managerial Staff of SBI to harass accused Raman Kumar, he should instead of withdrawing the amount by issuing six cheques C C No.29/10 86/250 87 should have informed the bank that this cheque had been wrongly credited in his account. It is well proved on the judicial file that cheque No. 402481 of Rs.70,000/, was obtained byaccused Vipin Kumar through account no.14322 opened by him in the assumed name of Naveen Kumar in SBI, Najafgarh. There is a lot of evidence on the file that accused Raman Kumar and accused Vipin Kumar were hand in gloves with each other. There is evideence on the file that accused Raman Kumar had requested his friends to introduce accused Vipin Kumar in different names to open account in various branches. PW125 S C Mittal Handwriting Expert had opoined that pay in slip Ex.PW 12/C vide which this cheque was deposited in account no.3040 is in the handwriting of accused Raman Kumar (Q17 and Q31). in view of above discussion there is no merit in this argument that managerial staff of SBI had mischievously deposited this cheque in the account of accused Raman Kumar just to harass him and to teach him a lession. 94 It is argued on behlaf of accused Raman Kumar that out of the alleged huge amount of Rs.2 crore in suspense account, a petty amount of Rs.1,35,000/ has been allegedly attributed to him and out of banking mistake of more than 80 dates CBI has only C C No.29/10 87/250 88 investigated the mistake of about 29 days. No public servant can misuse or misappropriate even a single penny from the public fund what to talk of Rs.1,35,000/. Accused Raman Kumar has not given any explanation as to how this amount of Rs.1,35,000/ has been credited in his account. In these circumstances there is no merit in this argument.
95 It is argued on behalf of accused Raman Kumar that in the vigilance enquiry conducted in SBI, several high ranking officers have also been named but they have not been made accused in this case, only he has been made a escape goat. It is argued that in the service branch of SBI, Parliament Street, several officer/ clerks were dealing with the cheques, out of whom accused Raman Kumar has been charge sheeted in this case.
96 In this regard PW40, R P Malhotra has stated that accused Raman Kumar was dealing with the cheques in service branch of SBI, Parliament Street, after discovering the fraud in question enquiry was made as to why the huge amount was lying in the suspense account. Few entries have been led to P & SB Gujaranwala Branch which leads to the account of Chaman Kumar brother of Raman Kumar and accused Raman Kumar. Relevant C C No.29/10 88/250 89 portion of his statement in this regard is as under:
"When I joined the branch of State Bank of India, Parliament Street, 4 groups had been allotted to it for doing the clearing work. These 4 groups were of the staff working in bank. These groups of employees were assigned duties to deal with the particular number of bank and branches. These were based on alphabetical orders. The 4 groups were in A to F, G to L, M to P and R to Z. These were groups in respect of our own branches. Different banks were also allotted to these groups for dealing with inward clearing.
I have been shown RBI inward clearing register Ex PW 40/A. My predecessor Sh. R L Sharma had issued the office order Ex PW 40/B, which bears his signature. I identify the same because he was predecessor and the entire record contains his signatures in many places. The signatures of Sh. R L Sharma are at point A on Ex PW 40/B. This register was for the balancing of the cheques received from other bank and lodged by us on other banks. Figures received from RBI were incorporated in the register. And the net amount payable or receivable as the case may be was arrived at on daily basis.
C C No.29/10 89/250 90
I have seen page no.149 which is Ex PW 40/B1.
Accused Raman Kumar present in the Court ( Correctly identified) was in group M to P. When I joined the bank in 1984 I found that an amount of Rs. 2 crore was lying in suspense account, on account of non conciliation of the entires in the receipt aside of the register (Objected to). Suspense register not on record.
After taking over charge and finding the huge balance in suspense account, I changed the groups and also made certain other changes in the system. Afterwards I looked back as to why this amount was lying in suspense account. I engaged a computer agency to balance the negotiable instruments received by us and sent to other branches. From computer output, we came to know that there certain entries of round figures. The computer statements referred by me are Ex PW 40/C1 to Ex PW 40/C24 (sheets). On scrutiny of these computer sheets, that instrument which had round figures such as Rs.10,000/, Rs.20,000/ received from the banks were not tallied with numbers of instruments sent to the drawee branches. In particular we C C No.29/10 90/250 91 found that the instruments received from Punjab & Sind Bank, Gujranwala Town were not tallying with the number of instruments sent to drawee branches. Then I deputed my officer to P & Sind Bank to find out the particulars of the instruments. Then we started exercise of tracing the reasons for the huge balance in suspense account, In this connection first of all we found the instruments given out by computer output were less more so far as the instruments were received from other bank. But the instruments were sent to branches were no of equal numbers but were less in numbers. At that time the particulars of instruments were not mentioned by the lodging banks and only amounts were mentioned and therefore, we collected the particulars of instruments actually received by our branches. Because of this exercise we come to know the number and particulars of the instruments which were found mentioned in the computer output but were not sent to the branches. We found that 23 instruments of round figures such as Rs.10,000/, Rs.20,000/ received from Punjab & Sind Bank, Gujranwala Town to find out the details of the instruments lodged by them, which were C C No.29/10 91/250 92 missing. From there we found out that no instrument of Rs. 10,000/, Rs.20,000/ had been lodged by them, but an instrument of Rs.70,000/ had been lodged in the relative date of credit. Thereafter we enquired from Punjab & Sind Bank, Gujranwala Town about particulars of account in which credit of Rs.70,000/ had been given and asked the name of our drawee branch. We found out that the credit had been afforded to the account of one Chaman Kumar. Then we examined the Account opening form of Chaman Kumar and came to know that accused Raman Kumar had introduced said account. The Account opening form is Ex PW 28/H1, which bears the signature of accused Raman Kumar at point. We also came to know that Raman Kumar had also account in the same branch. We scrutinised Raman Kumar's account also and found it huge fraudulent entries therein. in respect of clearing system. The total fraud was of Rs. 58 lacs which could be traced by us."
97 As the amount of destroyed cheques in question was credited in the account of Raman Kumar, his borther Chaman Kumar and his friend Vipin Kumar hence he has been charge C C No.29/10 92/250 93 sheeted in this case and no other employee of Service branch of SBI, Parliament street charge sheeted in this case. 98 It is argued on behalf of accused Raman Kumar that none had seen him removing or destroying the cheques in question in the service branch of SBI, Parliament Street. It is correct that prosecution has not produced any direct evidence to prove that accused Raman Kumar had removed or destroyed the cheques in question himself but as discussed and quoted above there is strong circumstantial evidence that he had removed or destroyed the cheques in question while working in service Branch of SBI, Parliament Street.
99 In view of above discussion there is no merit in these arguments of accused Raman Kumar 100 A2 Chaman Kumar is the real brother of accused Raman Kumar (A1). According to prosecution he had opened two bank accounts one in SBI, Jahangirpuri bearing account No.11661 in the assumed name of Ashok Kumar. It was introduced by K.L.Kalra. Account opening form of the same is Ex PW 32/B C C No.29/10 93/250 94 (D14). The concerned branch had issued cheques bearing No. 695321 to 695340 to the account holder to withdraw the amount from the said account no.11661 which is clear from Statement of A/c Ex.PW 32/B. The Statement of account of SBI, Jahangirpuri Ex PW.32/D (D16)would show that the balance of Rs.100/ remained for all the time w.e.f. 23.11.83. to 27.09.85. 101 According to prosecution accused Chaman Kumar opened saving bank account no.11661 in the assumed name of Ashok Kumar in SBI Jahangirpuri Branch, Delhi. In this regard relevant portion of statement of PW73 Sh. Satinder Pal Singh is as under:
"On 27.2.86 I handed over one cheque book issue register of SBI to CBI which was seized vide memo Ex PW2/A, which bears my signature . Said cheque book issue register is Ex PW2/B, which is maintained in regular course of business. As per entry No. 321 on page 79 of this cheque book issue register a cheque book bearing no. 695321 to 340 was issued against account no.11661 of Ashok Kumar on 24.11.83. Issue of cheque book was authorised by Sh. I J Sehgal, Accountant and issued by Sh. Vikram Singh Clerk. Aforesaid entry is Ex PW 2/C. As per entry, cheque book was C C No.29/10 94/250 95 received by Ashok Kumar."
102 In this regard relevant portion of statement of PW32 Sh. S K Kalia is as under:
" On 18.1.86, I handed over four documents detailed in seizure memo Ex PW32/A to Inspector of CBI, vide seizure memo Ex PW32/A. Documents were correctly described in the memo. It bears my signature at point A. The Account opening form in respect of Ashok Kumar detailed at serial No. 1 of seizure memo Ex PW32/A is Ex PW 32/B. The pay in slip dt. 23.11.83 for deposit of Rs.100/ detailed at serial no.2 of seizure memo is Ex PW32/C. The original ledger sheet pertaining to account No. 11661 of Ashok Kumar is Ex PW32/D and the photostat copy of page no.79 of cheque book register is Ex PW 32/MarkX."
103 In this regard relevant portion of statement of PW39 Sh. C H Batra is as under:
" In the year 198384 I was posted in SBI Jahangirpuri Branch, as Clerk but officiating as officer. I have been shown Account opening form Ex PW 32/1 of Ashok Kumar No. 11661. C C No.29/10 95/250 96 Ashok Kumar signed the form in my presence at point A. My signatures are at point B on the said form. Sh. K L Kalra had introduced Ashok Kumar for opening the account. His signatures are at point C on the form. Sh. K L Kalra was our customer and I had verified his signatures from the record.
104 I have also mentioned that cheque book was issued to Ashok Kumar after his account was opened. My endorsement is at point D in encircled portion."
105 According to Handwriting Expert PW125 Sh. S C Mittal writings at point Q1, Q8, Q9 and Q10 on the account opening form Ex.PW 32/B of account no. 11661 in SBI Jahangirpuri in the name of Ashok kumar is of accused Chaman Kumar.
106 According to Handwriting Expert specimen signaturesof "Ashok Kumar" on the back of account opening form Ex.PW 32/B at point Q2 and Q3 is in the handwriting of accused Chaman Kumar. According to Handwriting Expert writing "KISHAN KUMAR LAL K722 Jahangirpuri Delhi" at point Q4 on the back of account opening form Ex.PW 32/B is C C No.29/10 96/250 97 also in the handwriting of accused Chaman Kumar. 107 According to Handwriting Expert word "Ashok Kumar" on pay in slip Ex.PW 32/C vide which Rs. 100/ were deposited vide opening the above said account, is in the handwriting of accused Chaman Kumar. According to Handwriting Expert signature of "Ashok" at point Q6 on pay in slip Ex.PW 32/C is in the handwriting of accused Chaman Kumar. According to Handwriting Expert signature of "Ashok" at point Q7 on cheque book Issue Register Ex.PW 2/C against entry No. 321 at page 79 vide which a cheque book bearing cheque Nos. 695321 to 340 was issued against account no. 11661 on 24.11.83 is of accused Chaman Kumar. 108 Thus, the report of handwriting Expret Ex.PW 125/B and his deposition in the court corrobartes and confirmed the version that accused Chaman Kumar had opened above said accounts in the assumed name of Ashok kumar and received cheque book bearing cheque Nos. 695321 to 340.
109 Other account was opened by accused Chaman Kumar in his own name in PSB, Gujaranwala Branch, bearing account No. C C No.29/10 97/250 98 3918 introduced by accused Raman Kumar. Account opening form of which is Ex PW 28/G1. This branch also issued cheques bearing No.444676 to 444600 and cheque No.27701 to 27710 vide Ex PW 28/C1 and C3. Issuance of cheques is also clear from the ledger sheet of the accounts Ex.PW8/F2. The cheques were requested by A2 vide Ex PW 38/C1(D451).
110 Prosecution has proved the payinslip in respect of 6 cheques of SBI Jahangirpuri which were deposited by accused Chaman Kumar in PSB Gujaranwala. The concerned payinslips are Ex PW 12/P2, Ex PW 12/1 Ex PW 12/D2, Ex PW 12/M, Ex PW 12/P4 and Ex PW 12/O (D48).
111 Outward Clearing Register of PSB, Gujaranwala Branch Ex PW12/A (D52) would show that the missing/untraced cheques in question were in fact initially deposited therein along with payinslips. The identity of the cheques is clear from Outward Clearing Register (D52) Vol.2/3/4/5.
112 Cheque no. 086423 was deposited on 11.11.83 vide pay in slip Ex.PW 12/1 (D48) for an amount of Rs.74,000/ in P & S Gujaranwala Town, in account No. 3918 in the name of Chaman Kumar Ex.PW 28/H1 (D46). This cheque leaflet was issued vide C C No.29/10 98/250 99 account No. 8109 in the name of accused Vipin Bhardwaj Ex PW1/A (D5) by SBI, Paharganj. The cheque no. 086423 has been clearly mentioned in outward clearing register D52, Vol. IV, Ex. PW12/A. 113 Cheque no. 0695322 was deposited on 30.11.83 vide pay in slip Ex.PW 12/P2 (D48) for an amount of Rs.70,000/ in P & S Gujaranwala Town,in account No. 3918 in the name of Chaman Kumar Ex.PW 28/H1 (D46). This cheque leaflet was issued vide account No. 11661 in the name of Ashok Kumar Ex PW32/B (D14) by SBI, Jahangirpuri. The cheque no. 0695322 has been clearly mentioned in outward clearing register D52, Vol. V, Ex. PW12/C, page No.12.
114 Cheque no. 0695324 was deposited on 15.12.83 vide pay in slip Ex.PW 12/M (D48) for an amount of Rs.70,000/ in P & S Gujaranwala Town,in account No. 3918 in the name of Chaman Kumar Ex.PW 28/H1 (D46). This cheque leaflet was issued vide account No. 11661 in the name of Ashok Kumar Ex PW32/B (D14) by SBI, Jahangirpuri. The cheque no. 0695324 has been clearly mentioned in outward clearing register D52, Vol. V, Ex. PW12/N, page No.57.
C C No.29/10 99/250 100 115 Cheque no. 0695325 was deposited on 03.1.84 vide pay in slip Ex.PW 12OM (D48) for an amount of Rs.70,000/ in P & S Gujaranwala Town,in account No. 3918 in the name of Chaman Kumar Ex.PW 28/H1 (D46). This cheque leaflet was issued vide account No. 11661 in the name of Ashok Kumar Ex PW32/B (D14) by SBI, Jahangirpuri. The cheque no. 0695325 has been clearly mentioned in outward clearing register D52, Vol. II, Ex. PW12/P1, page No.06.
116 Cheque no. 459433 was deposited on 3.2.84 vide pay in slip Ex.PW 12/D2 (D48) for an amount of Rs.74,000/ in P & S Gujaranwala Town,in account No. 3918 in the name of Chaman Kumar Ex.PW 28/H1 (D46). This cheque leaflet was issued vide account No. 44596118 in the name of Dharam Pal Roja Ex PW9/A1 (D21, 22,23) by SBI, Jahangirpuri. The cheque has been clearly mentioned in outward clearing register D52, Vol. II Ex. PW12/P3, page No.99.
117 Cheque no. 0695325 was deposited on 07..84 vide pay in slip Ex.PW 12/P4 (D48) for an amount of Rs.74,000/ in P & S Gujaranwala Town,in account No. 3918 in the name of Chaman Kumar Ex.PW 28/H1 (D46). This cheque leaflet was issued vide C C No.29/10 100/250 101 account No. 11661 in the name of Ashok Kumar Ex PW32/B (D14) by SBI, Jahangirpuri. The cheque no. 0695335 has been clearly mentioned in outward clearing register D52, Vol. II, Ex. PW12/D1, page No.09.
118 Amounts of all these cheques totalling to Rs.4,32,000/ was credited in the account no. 3918 P & S Gujaranwala Town in the name of chaman Kumar who was the sole beneficiary of this amount.
119 It is argued by prosecution that the branch of a bank receiving a cheque for transit/clearance prepares two types of records, one is the cheque schedule in duplicate which gives total amount of cheques received for collection from a particular Bank whereas the Branch also prepare a Outward Clearing Register which would show transmission of the cheques in particular i.e. bearing Cheques' Serial number, the name of the person who tendered the cheque along with payinslips for clearance, the bank to which the cheques pertains and other details including amount of cheque in transit. In this way the prosecution has proved Outward Clearing Register Ex PW 12/L, 12/N, Ex PW 12/M,Ex PW/12M, Ex PW 12/P1 and Ex PW 12/P3 which can be seen at page No. 6, 7, 9, C C No.29/10 101/250 102 12, 56, 57 and 99. Prosecution has argued with reference to the Outward Clearing Register the cheque Nos. have been found in those registers for a sum of Rs.74,000/, Rs.70,000/, Rs.70,000/, Rs.70,000/, Rs.74,000/, Rs.74,000/ total Rs.4,32,200/. The number of cheques involved, which according to prosecution removed by A1 in course of clearance are thus 086423, 0695322, 0695324, 0695325 and 4594332 & 0695335. The cheque Nos 086423 was in fact issued to accused No.3 from SBI, Paharganj whereas other four were issued from SBI Jahangirpuri to A2 Chaman Kumar in assumed name of Ashok Kumar.
120 Cheque No.459433 for Rs.74,000/ was in fact issued to Mr Dharam Pal Roza from SBI Delhi Main Branch. A/c opening form of which is Ex. PW 22/A. Statement of Account is Ext PW9/A. Cheques No.459421 to 459440 (D21)were issued to Mr Roza. PW22 Dharam Pal Roza has appeared in the witness box as PW22 who has deposed as follows:
"On 17.12.82 I opened saving bank account in state Bank of India, Main Branch, New Delhi in the joint name of myself and Mrs. Raj Bala. Account Opening Form is Ex.PW 22/A which is filled in my handwriting and bears my signatures as well as C C No.29/10 102/250 103 signatures of my wife in the column of specimen signatures. After opening of the said account, I was issued one cheque book containing Cheque No.459421 to 459449. Out of the said cheque book I issued first nine cheques. Thereafter my aforesaid cheque book was stolen from my table drawer, while I was posted as Assistant in State Bank of India, Service Branch, Parliament Street, New Delhi. I reported said theft vide my complaint Ex.PW 9/B. It is in my hand and bears my signatures. I was posted in service branch from July, 1983 till June, 1994. Accused Raman Kumar present in the court was posted in service branch during said period. I cannot identify the handwriting or signature of accused Raman Kumar. I have seen cheques Ex.PW 13/A to Ex.PW 13/E. These cheques are neither filled in by my handwriting nor signed by me."
121 This witness has not been cross examined on behalf of any of accused inspite of giving opportunity. In these circumstances there is no reason to disbelieve the evidence of this witness. In this regard, evidence of PW9 Kuldeep Singh is also worth important to note who has deposed as follows:
"During the period 1982 to 1984 I was posted as passing C C No.29/10 103/250 104 officer in State Bank of India, PBD, New Delhi Main Branch, Parliament Street. I have seen account opening form pertaining to account S. B No. 445/96118 in the name of D.B. Rojha and Mrs. Raj Bnala Rojha. Said account opening form is mark A1. I have seen original ledger sheet pertaining to the aforesaid account no. 445/96118 Ex.PW 9/A running into three sheets (6 pages). I have seen encircled entry Ex.PW 9/A1 on this ledger sheet Ex.PW 9/A. This entry is dt. 2.2.84 relating to stop payment of a cheque. It bears my initials. However, entry is made in the name of concerned clerk. This entry has been made on the request of account holder Sh. D P Rojha. Said original request is Ex.PW 9/B."
122 It has also been submitted by prosecution that cheque No.459433 belonging to PW22 Mr Dharmpal Roza for Rs.74,000/ was surreptitiously removed by A1 from the bunch of the cheques issued to Mr Roza and was deposited in the account of A2 for credit in which he succeeded. Mr Roza was a colleague of A1 Raman Kumar.
123 After depositing the cheques at PSB and UCO Bank those were transmitted for clearance through service branch of Banks/branches concerned in Clearing House located at RBI. Since C C No.29/10 104/250 105 the aforesaid six cheques pertained to SBI branches cheques in question along with several other cheques were sent to service branch of SBI for proper destination thereof to the branches concerned to honour the same if there was sufficient fund in the A/cs or to dishonour the same if there was no sufficient fund. Since accused No.1 Raman Kumar was posted at SBI, Service Branch, Parliament Street, New Delhi, he was to negotiate such affairs especially relating to cheques drawn upon branches of SBI. It has been further argued by prosecution that the cheques drawn upon different branches of SBI, routed through branches of PSB and UCO Bank and RBI, did not reach at the concerned branches because cheques were dishonestly and fraudulent with held by A1 Raman Kumar. As such the credits were given in the A/c concerned by those branches which had sent the cheques in question to RBI through their Service Branch. 124 It is further argued that A1 was a public servant entrusted with the duties and cheques were under his control. He fraudulently removed the cheques and with a view to allow false adjustment and credit of accounts equivalent to the amount of cheques removed. The modus operandi being to put 2 or 3 fictitious C C No.29/10 105/250 106 amounts equivalent to the cheques removed and thus the total amounts of all cheques received for the day from RBI would tally at the end of the day despite removal of one/two cheques. It is submitted that in those days there was no physical counting of the cheques at any point but only the total amount of all the cheques sent from RBI, Clearing House to SBI, Service Branch were noted. Taking advantage of this accused N o.1 removed the cheques he was entrusted therein and thus resultantly the credits were given to the accounts of A2 and A3 at PSB, Gujaranwala Branch, PSB Naraina, PSB Defence Colony, PSB Asaf Ali Road, PSB Karol Bagh and two branches of UCO Bank i.e. Kamla Nagar and New Sabzi Mandi Branch. The accused No.2 and 3 thus got illegal pecuniary benefit in conspiracy with A1 and A4.
125 Such fraudulent credits of the six cheques in question relating to deposits of cheques with payinslip made by Chaman Kumar is clear from the Statement of Account of PSB, Gujaranwala Branch Ex PW 28/F2 (D47).
126 As soon as the amounts of six cheques in question credited in the account of A2 Chaman Kumar, he started withdrawing the amount from A/c No.3918 PSB Gujaranwala C C No.29/10 106/250 107 Branch. He had issued 33 cheques Ex PW 28/E1 to Ex PW28/E33 at PSB, Gujaranwala Branch, thus withdrawing an amount of Rs.4,32,000/ leaving a balance of Rs.156.55. 127 According to the report of Handwriting Expert PW125 Sh. S C Mittal Ex PW125/C signatures on all these cheques at point Q 39 to Q87 are that of accused Chaman Kumar. According to the report of Handwriting Expert PW125 Sh. S C Mittal signatures at point Q 34 on account opening form of account no.3918 in the name of accused Chaman Kumar Ex.PW 28/H1 and at points Q35 and Q36 on specimen signature card of this account Ex.PW 28/G2 are that of accused Chaman Kumar. According to Handwriting Expert signatures at point Q 39 to Q86 on 32 cheques are that of accused Chaman Kaumar. He had obtained one draft of Rs.45,000/ Ex.PW 28/E3 against one of these cheques Ex.PW 28/E7. All these cheques were self cheques issued by accused Chaman Kumar and payment of which were also received by him signing on the back of cheques before the cashier.
128 Accused Chaman Kumar has appeared in the witness box in his defence as DW4 U/s 315 Cr PC and deposed in his cross examination that he know accused Vipin Kumar for the last C C No.29/10 107/250 108 about 23/24 years. He has never been his customer. He (Chaman Kumar) never had cheque or cash dealingwith with Vipiin Kumar till date. Relevant Portion of his cross examination in this regard is as under:
"I know accused Vipin Kumar present in the court for the last about 2324 years from today. He had never been my customer. I never had cheque or cash dealing with him till today."
129 In the written arguments dt.5.5.2011 filed by of accused Chaman Kumar he has specifically submitted as follows:
"That Chaman Kumar maintains a stand that six cheques in question have been received by his shop in routine business towards the payment of goods from the side of his customers and after realisation of cheque amount, the goods were delivered, could have been confirmed by the seized documents from Raj Electronics."
130 It is well proved on the judicial file that cheque bearing no. 86423 for Rs.74,000/ deposited in the account No. 3918 in the name of Chaman Kumar in PSB, Gujaranwala Town vide pay in slip Ex.PW 12/1 was infact issued to Vipin Bhardwaj (Vipin Kumar) from SBI, Paharganj qua account no.8109, D46 Ex.PW 28/H1. It is also proved on the judicial file that this amount C C No.29/10 108/250 109 of Rs.74,000/ has been credited in the above said account of Chaman Kumar who had withdrawan this amount. In view of above discussion it is proved beyond reasonable doubts that accused Chaman Kumar had deposed falsely that he had no money dealing with accused Vipin Kumar either in cash or cheque. 131 According to accused Chaman Kumar these six cheques were issued to him by his customers including the alleged Ashok Kumar who had opened account with SBI Jahangirpuri. Had it been so how the above said cheque issued by accused Vipin Kumar as Vipin Bhardwaj and the cheque No. 459433 which was issued to Dhram Pal Roza had been credited in his account. 132 It is argued on behalf of accused Chaman Kumar that prosecution intentionally has not produced PW K L Kalra in the witness box who had introduced account no.11661 in the name of Ashok Kumar in SBI, Jahangirpuri, hence adverse inference should be drawn against the prosecution. Accused Chaman Kumar himself had taken adjournment from this court to produce this witness as his defence witness but inspite of taking adjournments he could not trace him out so as to produce him in the witness box as his defence witness which shows that whereabouts of this witness is now not C C No.29/10 109/250 110 known hence no adverse inference can be drawn against prosecution.
133 It is argued on behalf of accused Chaman Kumar that cheque no. 459433 for Rs.74,000/ dt. 2.2.84 according to CBI drawn at SBI, Parliament Street, New Delhi from the cheque book of PW22 Dharam Pal Roza, it is argued that this cheque as per clearing register Punjab & Sind Bank stated to have been drawn by SBI, Okhla Branch, thus it has nothing to do with SBI Parliament Street Branch. It is argued that the person having account at Okhla may have co incidently received same cheque No. It is argued that the person having an account with Okhla is a distant entity but CBI has never interrogated that person who is the holder of above said cheque No. That account has not been seized nor the statement of account of the same was obtained and no enquiry was made from Okhla branch by CBI.
134 PW22 Dhram Pal Roza has himself appeared in the witness box and specifically deposed that he had opened an account in his joint name and that of his wife Raj Bala. He had been issued cheque book containing cheque Nos. 459421 to 459449 out of which he had issued nine cheques thereafter his aforesaid cheque C C No.29/10 110/250 111 book was stolen from his table drawer while he was posted as Assistant in SBI, Service Branch, Parliament Street. He has specifically stated that accused Raman Kumar was also posted in the Service Branch of SBI, Parliament Street at that time. There is evidence that Dhram Pal Roza had informed the bank about the loss of his cheque book vide Ex.PW9/B. It is also in evidence of PW9 that entry with regard to stop payment of the cheque was made on 2.2.84. In these circumstances when the investigating agency was having specific evidence that the cheque in question bearing no. 459433 was issued to Dhram Pal Roza, there was no need to make roaming enquiry with regard to this cheque no. from any other person. It is correct that in the outward clearing register of PSB Gujaranwala Town, drawee branch of this cheque is shown as Okhla Branch. It is in evidence that in pay in slip account No. of Okhla Branch not mentioned.
135 It is argued on behalf of accused Chaman Kumar that when the payment of this cheque was stopped by Mr. Roza then how the amount of this cheque can be credited in his account. It is worth important ot mention here that this cheque was lost/misplaced during the transit and had not reached back to the concerned branch C C No.29/10 111/250 112 of SBI within three days, therefore, the concerned branch was not aware about issuing of this cheque and after expiry of three days as per banking norms amount of this cheque of Rs.74,000/ was credited in the account of accused Chaman Kumar. As the cheque in question had not reached to the concerned branch of SBI, hence there was no question of debiting of amount of this cheque in the account of Mr. Roza. This modus operandi has been adopted by accused Raman Kumar in all the 41 cheques including the present one which corroborates the overall method of comitting this fraud. In this regard relevant portion of statement of PW12 S Ranjit Singhi is as under:
" Its corresponding pay in slip is Ex.PW 12/P2. It bears my initials. This register contains entry dt. 2.2.84 at serial No.15 regarding the deposit of cheque worth Rs.74,000/ in the account no. 3918 of accused Chaman Kumar drawn at SBI, Okhla. This entry Ex.PW 12/P3 bears the intials of Gurdial Singh, Officer, who has since left the bank as well as India. As per entry, the cheque was not returned back dishonoured Ex.PW 12/P4 is the corresponding pay in slip regarding the deposit of cheque mentioned in entry no. Ex.PW 12/P3. It also bears the initials of Gurdial Singh as checking C C No.29/10 112/250 113 officer which i identify".
136 It is argued on behalf of accused Chaman Kumar that prosecution had recorded the statement of seven Ashok Kumar's U/s 161 Cr PC and had searched house of three Ashok Kumar's but none of these Ashok Kumar's have been produced as witness in the court. Prosecution had got issued summons to these Ashok Kumar's who have been cited as witnesses in the list of witnesses but the summons issued to them could not be served, hence they could not be examined in the court. In these circumstances no adverse inference can be drawn against prosecution. 137 It is argued on behalf of accused Chaman Kumar that none of these Ashok Kumar have been cited as an accused in the charge sheet. Investigating Agency had filed the charge sheet after completing the investigation and cited the persons as accused against whom sufficient evidence collected during the investigation. Investigating Agency after collecting the evidence reached to the conclusion that accused Chaman Kumar had opened account no. 11661 in SBI Jahangirpuri in the assumed name of Ashok Kumar. Actually, no such Ashok Kumar who had opened this account is in existence, therefore, accused Chaman Kumar has been cited as an C C No.29/10 113/250 114 accused in the charge sheet.
138 It is argued on behalf of accused Chaman Kumar that his police remand was taken during the investigation. His house was searched but nothing incrimianting like cheque book, pass book, pay in slip etc. were recovered from his house regarding the tainted account. No pay in slip can be recovered from house of accused because pay in slips have to be deposited in the banks. It is correct that no cheque book or pass book of the account in question was recovered from the house of accused Chaman Kumar but on this ground alone clean chit cannot be given to accused Chaman Kumar, in view of the sufficient substantive evidence appeared against him.
139 Disclosure statement of accused Chaman Kumar Ex.PW 40/F was recorded on 17.1.86 by Inspector U D S Sodhi wherein he had dislosed that he in connivance of his brother Raman Kumar opened fictitious account in the name of Ashok Kumar in SBI Jahangirpuri branch and signed as Ashok Kumar while dealing with that account. In furtherance of above disclosure statement of accused Chaman Kumar recoveries of documents pertaining to account No. 11661 opened in the name of Ashok C C No.29/10 114/250 115 Kumar were made from S K Kalia vide seizure memo Ex.PW 32/A dt. 18.1.86 by Inspector U D S Sodhi from the concerned branch of SBI.
140 Sh. U D S Sodhi has appeared in the witness box as PW124. He has also been cross examined on behalf of accused Chaman Kumar and Raman Kumar. His entire cross examination on behalf of all the accused is as under:
"It is wrong to suggest that accused Ramaqn and Chaman did not make any disclosure statement or that I obtained their signatures on blank papers and subsequently converted those blank papers into disclosure statement."
141 From the above quoted cross examination it is clear that only a suggestion has been given to him that accused Chaman Kumar and Raman Kumar did not make any disclosure statement which has been denied by the witness, thus, nothing such has appeared in his cross examination to disbelieve his statement in this regard. Therefore, this court is of opinion that abovel said disclosure statement of accused Chaman Kumar is legally admissible as evidence in this case.
142 According to Section 27 of Indian Evidence Act only C C No.29/10 115/250 116 such portion of disclosure statement made in police custody by an accused, which leads to recovery of a fact/article is admissible, thus, the fact of recovery of above referred various documents from SBI, Jahangirpuri branch pertaining to account no.11661 in the name of Ashok Kumar, is legally admissible in this case. 143 According to Handwriting Expert PW125 Sh. S C Mittal writings at point Q1, Q8, Q9 and Q10 on the account opening form Ex.PW 32/B of account no. 11661 in SBI Jahangirpuri in the name of Ashok kumar is of accused Chaman Kumar.
144 According to Handwriting Expert specimen signaturesof "Ashok Kumar" on the back of account opening form Ex.PW 32/B at point Q2 and Q3 is in the handwriting of accused Chaman Kumar. According to Handwriting Expert writing "KISHAN KUMAR LAL K722 Jahangirpuri Delhi"
at point Q4 on the back of account opening form Ex.PW 32/B is also in the handwriting of accused Chaman Kumar.
145 According to Handwriting Expert word "Ashok Kumar" on pay in slip Ex.PW 32/C vide which Rs. 100/ were C C No.29/10 116/250 117 deposited vide opening the above said account, is in the handwriting of accused Chaman Kumar. According to Handwriting Expert signature of "Ashok" at point Q6 on pay in slip Ex.PW 32/C is in the handwriting of accused Chaman Kumar. According to Handwriting Expert signature of "Ashok" at point Q7 on cheque book Issue Register Ex.PW 2/C against entry No. 321 at page 79 vide which a cheque book bearing cheque Nos. 695321 to 340 was issued against account no. 11661 on 24.11.83 is of accused Chaman Kumar. 146 Thus the evidence of Handwriting Expert and his report also confirms the fact that documents recovered by the investigating agency in furtherance of above said dislosure statement bears signatures/handwriting of accused Chaman Kumar . 147 It is argued on behlaf of accused Chaman Kumar that specimen writing/signatures of K L Kalra who had introduced the account of Ashok Kumar in SBI Jahangirpuri Branch were taken by the investigating agency but had not been sent to CFSL for comparison with his signatures/writing on the account opening form of above said account, hence adverse inference should be drawn against prosecution. The fact of introducing of Ashok Kumar for C C No.29/10 117/250 118 opening of above said account is not in dispute hence there was no need for sending his signatures/ writing for comparison with his signature/ writing on the account opening form of the above said account, therefore no adverse inference can be drawn against the prosecution.
148 In view of abovel discussion there is no merit in the arguments raised on behalf of accused Chaman Kumar. 149 Accused Vipin Kumar (A3) had opened 11 A/cs in different names, five of which were opened in different branches of SBI, 4 of which were opened in different branches of P & S B & two were opened in different branches of UCO bank. Five of which in SBI are as under:
1 SBI Paharganj Branch A/c No.8109 D5 Ext PW1/A) in the name of Vipin Bhardwaj which was introduced by Shri Rajesh Bajaj 2 SBI Nazafgarh - A/c No.14322 (D9 Ext5/B) in the assumed name of Naveen Kumar introduced by Ram Lakhan. 3 SBI Mayapuri A/c No.1949 D24 (Ext 6/A) in the assumed name of Santosh Kumar Sharma purported to be proprietor of M/s Santo Sons introduced by Vinod Ahuja.
C C No.29/10 118/250 119 4 SBI Shakurbasti A/c No.543 in the name of M/s Santosh Sales as V.Kumar which was introduced by Ashok Kumar of M/s Ashoka Saree Emporium (D31 Exts PW Ext 18/1).
5 SBI Chandini Chowk Branch A/c No.3/47000 in the name of M/s Vishal Plastic Enterprise through its proprietor as V.Inder Pal which was introduced by Sh. K B Mehta of Kay Bee & Co i.e. Accused No.4.
150 The four accounts opened by A3 Vipin Kumar in different names in different branches of Punjab & Sind Bank are as under:
1 PSB Naraina A/c No.2475 in the name of M/s Simplex Traders as Vipin Mohan Sharma which was introduced by Hari Charan Singh.
2 PSB Defence Colony Branch A/c No.1289 in the name of M/s Swastik Enterprise as its proprietor Vipin Chandra introduced by Hazare Singh.
3 PSB Asaf Ali Road A/c No.2013 in the name of Vipin Kumar Chawla s/o D N Chawla, r/o 16/2, Bajaj House, 87, Nehru Place, New Delhi, introduced by PW141 Satinder Singh. 4 PSB Karol Bagh A/c No.8342 in the name of Vipin Sharma C C No.29/10 119/250 120 introduced by Shri S.S.Kalia .
151 Two accounts opened in UCO Bank are as under:
1 UCO Bank, Kamla Nagar A/c No.1900 in the name of Vipan Kumar introduced by Shri Raj Kumar.
2 UCO Branch New Sabzi Mandi Branch A/c No.3573 in the name of Vipin Kumar introduced by Shri R.K.Verma.
152 The said account holders after opening the above said accounts also obtained cheque books qua the respective accounts which is clear from the Cheque book issue Register maintained in the respective branches. Serial No. of cheques issued to repsective account holders also noted in ledger sheets of the accounts in question and in statement of accounts.
153 The details of cheques given to accused Vipin Kumar as account holder of different accounts bankwise/branchwise are as follows:
1 SBI Paharganj A/c No.8109 086421 to 440 2 SBI Nazajgarh A/c No.14322 402481 to 500 3 SBI Mayapuri A/c No.1949 970851 to 875 4 SBI akurbasti A/c No. 543 778401 to 450 C C No.29/10 120/250 121 5 SBI A/c No. 332501 to 600 Ch.Chowk 3/47300 6 PSB Naraina A/c No.2475 746876 to 85 7 PSB Def A/c No.1289 525501 to 525
Colony 8 PSB Asaf Ali A/c No.2013 285251 to 260 Rd 9 PSB Karol A/c No.8342 471051 to 060 Bagh UCO Bank A/c No.19001 680501 to 510 10 Kamla Nagar 11 UCO Bank A/c No.3573 003981 to New Subzi 990 Mandi The Cheque(s) Issue Registers of different A/cs of A3 have been proved as under by the prosecution: 1 A3 Vipin Kumar SBI Paharganj 2 SBI Nazafgarh D13 Ex PW33/1 3 SBI Mayapuri D30 Ex PW 34/C 4 SBI Shakhurbasti D35 Ext PW 23/A 5 SBI Chandini Chowk D40 Ext PW 51/3 C C No.29/10 121/250 122 6 PSB Naraina D129 Ext. PW 5/D1 7 PSB Defence Colony D128 Ext PW49/D. 8 PSB Asaf Ali Road DX ExtX 9 PSB Karol Bagh D88 Ext 44/C 10 UCO Bank Kamla Nagar D96 Ext 77/B 11 UCO Bank Sabzi Mandi D103 Ext 87D
154 According to prosecution accused Vipin Kumar Sharma opened SB account no. 14322 on 6.9.83 with SBI, Najafgarh, Delhi in the assumed name of Naveen Kumar, r/o 1073 A, Basai Darapur. PW5 Shiv Dutt Tirkha has stated that he knew one Pappu. Subsequently, he came to know his name as Vipin Kumar who is accused in this case. He has filled in Pay in Slip Ex PW 5/A at the instance of Vipin Kumar Sharma who has disclosed his name to him (PW5) as Naveen Kumar. Relevant portion of his statement is as under:
"I was posted as a clerk in SBI, Najafgarh Road, Delhi Branch from 1978 to December, 1988. I know one Pappu. I met him for the first time in the year 1981, at the time of my engagement. Subsequently I came to know that said Pappu was C C No.29/10 122/250 123 Vipin Kumar Sharma. He is one of the accused persons present in the court. (correctly identified). I have seen pay in slip Ex PW 5/A. This pay in slip was filled in by me on the request of accused Vipin Kumar Sharma @ Pappu. When aforesaid pay in slip was filled in by me on the request of accused Vipin Kumar Sharma, he disclosed his name to me as Navin kumar. Till then I knew him only as Pappu. I came to know the name of Pappu as Vipin Kumar Sharma after the registration of the case. On 6.9.83 after the banking hours, when I went home, I told my wife that Pappu had visited the bank and he had opened an account in our branch as Navin Kumar. My wife showed a doubt in respect of the address of Pappu and thereafter we went to the house of father of said Pappu @ Vipin Kumar Sharma. On my enquiry, father of the Pappu told me that his name was not Navin Kumar but Vipin Kumar Sharma. I have seen Account Opening Form Ex PW 5/B pertaining to the account of Vipin Kumar Sharma which he had opened in the Vipin Kumar. This Account Opening Form was introduced by Ram Lakhan on my request. Ram Lakhan signed as introducer at point A on Ex PW 5/B C C No.29/10 123/250 124 in my presence. Accused Vipin Kumar Sharma @ Pappu signed specimen signature card Ex PW 5/C as Navin Kumar in my presence and also officer of the bank Mr. Gulati. I have seen Original extract of cheque book register pertaining to SBI, Najafgarh Road,New Delhi. Vide entry No. 481 cheque book containing 20 cheques was issued to Navin Kumar against Saving Bank Account no. 14322. Relevant entry is in my hand and is Ex PW 5/D. This entry bears the signature of Navin Kumar @ Vipin Kumar Sharma in token of having received the cheque book. I have seen original ledger sheet pertaining to aforesaid Saving Bank Account in the name of Navin Kumar.; Said ledger sheet is Ex PW 5/E."
155 In his cross examination this witness as stated as follows:
.........."When he came to bank for opening the account, I know him only by the name Pappu. This account was introduced by a customer of the bank Ram Lakhan. Above referred saving bank account in the name of Navin Kumar was opened by the Branch Manager Sh. B D Joshi. On the date of opening of account I told C C No.29/10 124/250 125 Sh. B D Joshi, Branch Manager that I knew said Navin Kumar as Pappu. I did not mention in the pay in slip that the depositor was Navin Kumar @ Pappu. Aforesaid Navin Kumar was not mentioned in the Account Opening Form .".....
....... " It is wrong to suggest that accused Vipin Kumar Sharma did not open said account in the name of Navin Kumar. It is wrong to suggest that I have deposed falsely to the effect that accused Vipin Kumar Sharma was introduced to me by my wife as Pappu."........
156 According to PW125 Shri S C Mittal, Handwriting Expert signatures/writings at point Q97 and Q236 and Q237 on Ex PW 5/B which is the Account opening form of S/B account No. 14382 opened by accused Vipin Kumar in the assumed name of Navin Kumar is of accused Vipin Kumar Sharma, Thus it also corroborates that accused Vipin Kumar Sharma had open the above said account in assumed name of Navin Kumar. 157 PW17 Sh. Ram Lakhan with regard to introducing the above said account in the name of one Navin Kumar has stated as follows in his examination in chief.
C C No.29/10 125/250 126
"Mr. Tirkha was a clerk in SBI, Najafgarh, Delhi at that time. He requested me to introduce the account of one Navin Kumar, applicant. Said Navin Kumar signed Account opening form Ex PW 5/B in my presence and I signed the Account opening form at point A as introducer. I can identify said Navin, whose account I introduced. He is one of the accused persons present in the court (witness as pointed towards accused Vipin Kumar Sharma as a person namely Navin Kumar, whose account he introduced vide Ex PW 5/B)"
158 In his cross examination, in this regard he has stated as follows:
....... " I signed the Account opening form Ex PW 5/B as introducer at the sheet of Sh. Tirkha."....
....... " It is wrong to suggest that CBI officers told me at that time that accused Vipin Kumar Sharma was the same person whose account I had introduced as that of Navin Kumar. Actually they told me to identify and asked if he was the same person, who opened said account. I did not know said person on the day on which I introduced his account. I signed as introducer only on the asking of Mr. Tirkha. I signed as introducer on Ex PW 5/B at the C C No.29/10 126/250 127 instance of Mr. Tirkha because I had a daily dealing with the branch and I knew that Tirkha was an employee of branch.".......
159 PW4 Sh. Kishan Lal and PW81 Sh. Mool Chand who has served as postman in the area of Basai Darapur at the relevant time have stated that there was no house with the number 1073A,in Basai Darapur. Relevant portion of statement of PW4 Kishan Lal, in this regard is as under:
"In the year 198283 there was no house with the no. 1073A in Basai Darapur during the years 198283".
160 This witness has not been cross examined on behalf of any of accused inspite of giving opportunity to cross examine him. PW81 Sh. Mool Chand in his statement has deposed as follows:
" In the year 1986 I was posted in Ramesh Nagar Post office which covered Basai Darapur Area. I have seen the registered envelope bearing No. RL2771 dt. 15.2.86 which is Ex PW 81/A. This RL was given to me for delivery to the addressee. The address mentioned on this envelope i.e. 1073A, Basai Darapur, New Delhi, was not in existence and I gave the report to this effect on the reverse of this envelope."
161 In his cross examination, in this regard he has stated as C C No.29/10 127/250 128 follows:
..... " It is wrong to suggest that my duty was not in Basai Darapur Area. It is wrong to suggest that the address mentioned on the envelope exists in the locality.".....
162 From the statement of PW4 and PW81 it is proved that address 1073A Basai Darapur was not in existence which has been furnished while opening the above said account, thus proves the dishonest intention of accused from the very beginning. 163 PW56 Sh. Surinder Mohan has stated that Account Opening Form of Navin Kumar Ex PW 5/B bears account no. 14322 in his handwriting. He had put his initials on the reverse of Account Opening Form at point E. He has further stated that cheques bearing No.402481 to 402500 were issued to Sh. Navin Kumar. Relevant portion of his statement, in this regard, is as under:
"This document Ex PW 5/D is the cheque book register showing issue of cheque bearing No. 402481 to 402500 was issued to the account holder Sh. Navin Kumar, account No. 14322 who also acknowledged receipt of the cheque book under the cheque book register. This entry Ex PW 5/D had been made by Sh. Tirkha, C C No.29/10 128/250 129 the clerk whose writing I know. This was acknowledged by Sh. Navin Kumar putting his signature against the entry in my presence and in token of that I had put my initials against his signature."
164 PW92 Sh. S K Gulati has stated that saving bank account No. 14322 dt. 6.9.83 was opened in the name of Navin Kumar vide Account Opening Form Ex PW 5/B, during his tenure under his signatures.
165 PW33 has deposed that CBI has seized five documents from him vide seizure memo Ex PW 33/A which bears his signatures.
166 According to prosecution accused Vipin Kumar Sharma opened SB account no. 8109 on26.8.83 in the name of Vipan Bhardwaj r/o 57, Adarash Nagar, Delhi33 in Paharganj Branch & Obtained cheque book No. 086421 to 086440 on 26.8.83. The account was introduced by Rajesh Bajaj. In this regard, relevant portion of statement of PW1 Sh. S C Kathuria, is as under:
" I have seen Account Opening Form in the name of Vipin Bhardwaj, S B Account no. 8109 Ex PW 1/A. It bears the initials of Sh. V K Dewan, Incharge Savings as authorising officer at encircle portion A. This account was introduced by one Rajesh Bajaj and his C C No.29/10 129/250 130 signatures are verified by Sh. V K Dewan. I identify his initials at point B in this regard on Ex PW 1/A. I have seen specimen signature card pertaining to the aforesaid account. It bears the signatures of Sh. V K Dewan at point A and it was countersigned by me at point B. This account was opened with initial deposit of Rs. 151/ with pay in slip Ex PW 1/C. original ledger sheet pertaining to aforesaid account is Ex PW 1/D, which has been authenticated by me and bears my signature at encircled portion A. MarkA is the photo copy of the relevant extracts of cheque book issue register of the bank containing entry pertaining to issue of cheque book against said account. As per entry in the ledger sheet Ex PW 1/D, cheque book containing cheques no. 086 to 086440 th was issued on 268 (26 August)."
167 This witness was not cross examined by any of the accused inspite of granting opportunities to them. 168 In this regard, relevant portion of statement of PW3 Sh. Rajesh Bajaj, is as under:
" I am a partner of M/s Lavista Studio, Hari Masjid, Paharganj, Delhi. I know Vinod Kumar Sharma r/o Gurdwara Wali Gali, Pahar Ganj. Said Vinod Kumar is not present today in the C C No.29/10 130/250 131 court. (witness is directed to see all accused perosns present in court and he states that none of them is Vinod Kumar Sharma). I have seen Account Opening Form Ex PW 1/A in the name of Vipin Bhardwaj, r/o 57, Adarash Nagar, Delhi. This account was introduced by me and it bears my signature at point C. Vinod Kumar Sharma of Gurdwara Wali Gali, Pahar Ganj was my old client and I was introduced to Vippin Bhardwaj by said Vinod Kumar Sharma. Because of that reason I knew Vippin Bhardwaj and as such I introduced his account, in SBI Paharganj. I do not remember if the Account Opening Form Ex PW 1/A was filled up by said Vippin Bhardwaj himself or some official of the bank. Said Vippin Bhardwaj is one of the accused persons present in court. (correctly identified, accused Vipin Kumar)."
169 In his cross examination, in this regard he has stated as follows:
" Vinod Kumar Sharma had introduced accused Vipin Kumar present in court to me only as Vippin, his brother in law without mentioning his surname. He was introduced to me by C C No.29/10 131/250 132 Vinod Kumar Sharma about one or one and half year before the introduction of account by me. Accused Vipin Kumar used to visit my photographic shop for business purpose. I took photographs of some novelty items as well as accused Vipin Kumar on his request. During investigation of this case, I handed over one photograph of Vippin Bhardwaj whose account I had introduced in SBI, Paharganj to CBI alongwith its negatives."
170 According to PW125 Shri S C Mittal, Handwriting Expert signatures/writings at point Q232 and Q233 on Ex PW 1/A which is the Account opening form of S/B account No. 8109 opened by accused Vipin Kumar ias Vipin Bhardwaj is of accused Vipin Kumar Sharma, thus it corroborates the versions of prosection that accused Vipin Kumar Sharma had open the above said account as Vipin Bhardwaj.
171 In this regard, relevant portion of statement of PW37 Sh. O P Malhotra, is as under:
"In the year 198586 I was posted as Branch Manager in SBI,Paharganj Branch, New Delhi .
I have seen Ex PW 1/A, Account Opening Form of Vippin Bhardwaj. The said account was introduced by Sh. Rajesh Bajaj. Ex C C No.29/10 132/250 133 PW 1/B is the specimen signature card of the said account holder. Ex PW 1/D is the ledger sheet of the said account of Sh.Vippin Bhardwaj."....
...... "I have seen seizure memo Ex PW 37/A. It bears my signature at point A. I put my signatures on this memo for handing over the documents as mentioned therein. Ex PW 1/A is the Account Opening Form, Ex PW 1/B is the specimen signature card, Ex PW 1/C is the pay in slip, Ex PW 1/D is the ledger sheet and Ex PW 37/B is the cheque book issue register are the documents which are mentioned in seizure memo Ex PW 37/A. Ex PW 37/C is the original page of cheque book issue register of MarkA. There is a relevant entry encircled red for issuing cheque leaves to Sh.Vippin Bhardwaj of account No.8109."
172 According to prosecution accused Vipin Kumar Sharma opened SB account no. 543 on 2.3.84 with SBI, Shakurbasti Branch, Delhi in the fictitious name of M/s Santosh Sales showing himself as Vipin Kumar r/o 126/3, Ram Puria, Delhi as proprietor & Obtained cheque book No. 778401 to 778450 on 4.3.84 . In this regard relevant portion of statement of PW18 Sh. Ashok Kumar is as under:
C C No.29/10 133/250 134
" In the year 1984 I was running a cloth shop at 1068 Rani Bagh, Delhi34. I was having an account in SBI, Shakurbasti, Delhi. I have seen Account Opening Form Ex PW 18/A. It bears my signature at point A as introducer. Shri Ved Parkash Bangia was working as cashier cum clerk in SBI, Shakurbasti in the year 1984. On the said day I had gone to State Bank of India, Shakurbasti for depositing money. Ved Parkash Bangia, cashier cum clerk requested me to sign as introducer on the Account Opening Form Ex PW 18/A. The person whose account was to open was present at that time. Ved Parkash Bangia told me that aforesaid person was known to him, therefore, I introduced the Account Opening Form. Probably accused Vipin Kumar present in the court is the person who opened the account as V.Kumar of M/s Santosh Sales vide Account Opening Form Ex PW 18/A (witness has pointed out towards accused Vipin Kumar as accused person out of accused persons). I cannot definitely identify accused Vipin Kumar as said person."
173 In his cross examination, in this regard he has stated as follows:
" When I introduced the Account Opening Form Ex PW C C No.29/10 134/250 135 18/A on that day said V.Kumar of M/s Santosh Sales was not previously known to me. I introduced his account because of request made by Ved Parkash Bangia, cashier cum clerk. When I signed the Account Opening Form , it was already filled.".......
..... " It is wrong to suggest that today I was told by CBI officers to identify accused Vipin Kumar as the person whose account was introduced by me.".......
174 According to PW125 Shri S C Mittal, Handwriting Expert signatures/writings at point Q105 and Q106 on Ex PW 18/A which is the Account opening form of S/B account No. 543 opened by accused Vipin Kumar in the name of M/s Santosh Sales as its proprietor is of accused Vipin Kumar Sharma. Thus it corrobortes the version of prosecution that accused Vipin Kumar Sharma had open the above said account in the name of M/s Santosh Sales as its proprietor .
175 In this regard relevant portion of statement of PW23 Sh.Ved Parkash Bangia is as under:
" In the year 198384 I was posted as cashier cum clerk in State Bank of India, Shakurbasti Branch, Delhi in July, 1983. I was sent on deputation to State Bank of India, main service branch, C C No.29/10 135/250 136 Parliament Street, New Delhi for three months. Accused Raman Kumar, present in the court was also posted at service branch State Bank of India, Parliament Street, New Delhi, during the period of my deputation. (correctly identified).
I have seen Account Opening Form Ex PW 18/A. This Account Opening Form is filled in my handwriting. I filled up this Account Opening Form on the request of accused Vipin Kumar present in the court (correctly identified). He was introduced to me by accused Raman Kumar during my tenure of deputation in service branch , Parliament Street, New Delhi. Account Opening Form Ex PW 18/A was signed by accused Vipin Kumar at encircled portion B in my presence. Vipin Kumar also signed at two places in the column of specimen signatures at the back side of Account Opening Form in my presence. Mrs. Phula Rani checked Account Opening Form in my presence. Mrs. Phula Rani checked Account Opening Form and authorised the opening of the account. She appended her initials at encircled portion C on Ex PW 18/A in my presence.
I have seen pay in slip Ex PW 23/A. This pay in slip is filled in my handwriting. I have seen original cheque book register of C C No.29/10 136/250 137 State Bank of India, Shakurbasti Branch, Delhi. Said register is Ex PW 23/B. Encircled entry mark PW23/X is not in my handwriting. Entry PW23/MarkX bears the signatures of accused Vipin Kumar at point Y."
176 This witness was not cross examined by any of the accused inspite of granting opportunities to them, hence there is no reasons to disbelieve the version given by him. 177 In this regard relevant portion of statement of PW58 Mrs. Phoola Rani is as under:
...... " I have seen the document Ex PW 18/A the Account Opening Form of the firm M/s Santosh Sales which was opened by Sh. V. Kumar and I authorised the opening of this account. The account holder put his specimen signature on the reverse of the Account opening form and in toke of that I put my initial at two places which are marked collectively at point B. This account was introduced by Ashoka Saree Emporium bearing account no. CA231.V P Bangia was one of the clerk in our office.".......
...... "Our branch used to maintain cheque issue register and accordingly cheques were issued to the customer. The entry C C No.29/10 137/250 138 relating to account no. 543 had been made by Smt. Sudha Saxena the then clerk whose writing I know. I, as officer I had put my initial in token of making over the cheque to the constituent in my presence. The account holder also put his signature in my presence at mark Y as the document is the photo copy not the original.".......
178 This witness was not cross examined by any of the accused inspite of granting opportunities to them hence there is no reason to disbelieve the version given by her. 179 PW29 Sh. S K Verma has handed over the documents Ex PW29/B & Ex PW 29/C vide seizure memo Ex PW 29/A to Sh. S R Aggarwal, DSP, CBI on 28.1.86.
180 In this regard relevant portion of statement of PW100 Sh. Subhash Chander, is as under:
" I remained posted as Postman at Om Nagar Post Office, Delhi during the year 1986. I have seen the registered envelope bearing No. 2774 dt. 15.2.86 which was sent from the office of SP, CBI, CIU, CGO Complex, New Delhi addressed to one Sh. V.Kumar, Proprietor of M/s Santosh Sales, 126/3 Rampura, New Delhi. This was given to me for delivery and service upon the addressee and accordingly I searched or the address in the locality. C C No.29/10 138/250 139 I found that addressee was not residing at the given address and accordingly I made report to this effect on the envelope. The envelope is Ex PW 100/A."
181 According to prosecution accused Vipin Kumar Sharma opened Current Account no. 1949 on 2.3.84 with SBI, Mayapuri Branch, New Delhi in the fictitious firm M/s Santo Sons showing himself as Santosh Kumar Sharma r/o A24/1Naraina, Delhi as proprietor & Obtained cheque book No. 970851 to 970875 on 2.3.84 . In this regard relevant portion of statement of PW6 Sh. Narender V Katyal is as under:
"On 8.6.82 I joined the service of State Bank of India and I was given three days orientation training at SBI, Parliament Street, New Delhi Branch . During said training I met accused Raman Kumar present in the Court ( Correctly identified). Thereafter, I was posted at SBI, Mayapuri , around February,1984 accused Raman Kumar met me at SBI , Local Head Office, Parliament Street N Delhi. He told me that one of his friend would come to my branch at SBI Mayapuri for opening bank account. He told me that place of his friend is at Narina. In March , 1984, one person came and introduced himself to me as Santosh Kr Sharma . He told me that C C No.29/10 139/250 140 he was friend of accused Raman Kumar. He further told me that as told by Raman Kumar to me, he has come to open account in our branch. Thereafter I gave account opening form to said Santosh Kumar, who filled in the same in my presence and signed it. Said account opening form is Ex PW6/A. One DDA Contractor Vinod Ahuja had an account in our branch. On the relevant date he had come to collect a cheque book. On my request Shri Vinod Ahuja signed as introducer for the account of said Santosh Kumar Sharma. Santosh Kumar Sharma appended the specimen signatures at the back of account opening form in my presence. Said Santosh Kumar Sharma had not filled in the column of occupation properly, therefore, I wrote the word business in the said column in Ex PW6/A in my own hand writing. Shri D N Taneja verified said account opening form. Said Santosh Kr Sharma is present in the Court. ( Witness has pointed towards accused Vipin Kumar Sharma as said Santosh Kumar Sharma) . I have seen pay in slip Ex PW6/B. It was filled in by me at the request of said Santosh Kumar Sharma @ Vipin Kumar Sharma and he signed it in my C C No.29/10 140/250 141 presence. Ex PW6/C is the ledger sheet pertaining to aforesaid current account No.1949 in the name of M/S Santo Sons , opened by Santosh Kumar Sharma. It contains the entry regarding the deposit of Rs.511/ vide said pay in slip. I have see cheque Ex PW6/D issued against the account of M/S Santo Sons for Rs.1,80,000/ in favour of self. This cheque was passed by Shri J P Aggarwal accountant. I identified said Santosh Kr Sharma @ Vippin Kumar Sharma in CGO Complex. And there I identified accused Vippin Kumar Sharma as the person who contacted me as Santosh Kumar and opened the account.
182 In the cross examination he has stated :
"I requested Shri Vinod Ahuja to introduce the account of Santosh Kumar because he has come with reference to my colleague Raman Kumar . At the relevant time I was not aware that opening of aforesaid account by Santosh Kr in the name of M/S Santo Sons was irregular . I was aware that no account could be opened in the the bank without proper verification/ introduction . Is accused Vippin Kumar Sharma after the date of opening of account on the day on which the cheque Ex PW6/D was encashed and thereafter in the CGO complex in the year 1986. It is wrong to suggest that in the C C No.29/10 141/250 142 CBI office Shri Aggarwal of CBI pointed towards Vippin Kumar Sharma and told me that he was Vipin Kumar Sharma."
183 According to PW125 Shri S C Mittal, Handwriting Expert signatures/writings at point Q101 and Q102 on Ex PW 6/A which is the Account opening form of CC account No. 1949 opened by accused Vipin Kumar Sharma in the name of fictitious firm M/S Santo Sons showing himself as Santosh Kumar is of accused Vipin Kumar Sharma.
184 According to PW125 Shri S C Mittal, Handwriting Expert signatures/writings at point Q103 and Q104 on Ex PW6/D. He has also opined that signatures at point Q107 a point B on Ex PW34/C which is cheque book issue register is of accused Vipin Kumar vide which he had received the cheque book containing cheque leaflet 970851 to 970875. Thus it corrobortes the version of prosecution that accused Vipin Kumar Sharma had open the above said account showing himself as Santosh Kumar Sharam and received the cheque book.
185 In this regard relevant portion of statement of PW57 C C No.29/10 142/250 143 Sh. Vinod Ahuja is as under:
" I introduced the account of Santosh Kr Sharma on 2.3.84 and in token of that I put my name and address and also my signature at point A on Ex PW 6/A. I did not know Santosh Kr Sharma before the introduction. However, it was done at the request of Current Account Clerk who was a lady but I do not remember her name."
186 In this regard relevant portion of statement of PW57 Sh. Vinod Ahuja is as under:
" I have seen pay in slip Ex PW 6/B. I made the posting entry of this pay in slip in original ledger. Pay in slip bears my initials at encircled portion A as dealing clerk.
I have seen Account Opening Sheet relating to account of M/S Santo Sons opened vide the account opening form Ex PW 6/A. Said Opening Sheet is Ex PW 34/A is filled up in my handwriting. I have also seen ledger Sheet pertaining to the above referred account Ex PW 6/C. The first two entries in this ledger Sheet are in my hand.
I have seen current account pay in slip Ex PW34/B regarding deposit of Rs.1,90,000/ in the Current Account of M/s C C No.29/10 143/250 144 Santo Sons bearing No. 1949, this pay in slip was dealt with by me as dealing clerk and it bears my initials at encircled portion A." C C No.29/10 144/250 145
187 In this regard relevant portion of statement of PW127 Sh. D N Taneja is as under:
" After seeing the Account Opening Form and specimen signature card Ex PW 6/A, I can say that I have verified the same at point B and C. This form was also shown to my senior officer Sh. S K Dhawan for approval of the opening of the account and in token of that he signed the same at point D. After seeing Ex PW 34/C which is leaf from the cheque book register, I can say that the cheque book was also issued in respect of above account vide entry at point A which is in my hand. The account holder also signed in my presence at point B in token of receipt of cheque book. After seeing the information sheet Ex PW 34/A, I can say that the particulars of account holder in respect of above account is mentioned by the Clerk Ms. Prem Lata whose writing I identify. I have seen the ledger sheet Ex PW 6/C in respect of above account. the particulars of cheque book with their numbers are mentioned therein by me in my handwriting. After seeing the pay in slip Ex PW 34/C, I can say that cash amount of Rs. 1,9,000/ was deposited in the above account vide this slip. After seeing the cheque Ex PW 6/D I can say that cash amount of Rs. C C No.29/10 145/250 146 1,9,000/ was withdrawn through the cheque."
188 In this regard relevant portion of statement of PW15 Sh.Anil Kumar is as under:
" I am in printing business since 1975 or 1976. In 1984, I was working under the name and style of M/s Atul Offset Works, A24/1, PhaseI, Naraina Industrial Estate, New Delhi. Firm of my father M/s Paramhans Press was also functioning at the same address. There was no firm under the name and style of M/s Santo Sons functioning at A24/1,PhaseI, Naraina Industrial Estate, New Delhi in the year 1984 to 1986. There was no person with the name Santosh Kr Sharma residing at the aforesaid address. I cannot say whether or not if anyone with the name Santosh Kr Sharma was an employee of my firm or the firm of my father."
189 In this regard relevant portion of statement of PW16 Sh. J Narain is as under:
" During the year 1984 to 1986,I was posted as a postman, beat No.10 Naraina Industrial Area Post Office, PhaseI. During my aforesaid tenure, one registered letter addressed to Santosh Kr Sharma, proprietor Santo Sons A24/1,PhaseI, Naraina Industrial C C No.29/10 146/250 147 Estate, New Delhi was received by me for delivery to the addressee. I returned back said registered envelope on 18.2.86 because no such person was available at the said address. Aforesaid envelope is Ex PW 16/A and my remarks explaining the none delivery at the back of the envelope is Ex PW 16/B."
190 From the statement of PW15 and PW16 it is proved that no person named Santosh Kumar Sharma was residing at A24/1 Phase I, Naraina and no firm under the name and style of M/s Santo Sons was functioning on the above said address which proves the malafide/ dishonest intention of accused Vipin Kumar Sharma from the very beginning.
191 According to prosecution accused Vipin Kumar Sharma opened S.B. Account no. 3/47300 on 5.3.84 with SBI, Chandni Chowk Branch, in the fictitious name & address M/s Vishal Plastic Enterprises showing himself as proprietor as V Inderpal, r/o 5014/1, Balli Maran, Delhi & this account form was introduced by Sh. K B Mehta as proprietor of M/s Kay and Bee & Company, 373B Katra Naya, Chandni Chowk Delhi & Obtained cheque book No. 332501 to 332600 on 5.3.84. In this regard relevant portion of statement of PW51 Sh. D N Utreja is as under: C C No.29/10 147/250 148
"An account in the name of M/s Vishal Plastic Enterprises was opened and the said account was authorised by me. The account was introduced and its introduction was verified by Mr. Gogia who as an officer at SBI, Chandni Chowk Branch,whose signature I know. Account Opening Form is marked Ex PW 51/1. When an account is opened cash is deposited to open the account and accordingly a cash of R.500/ was deposited in this account in cash. This is the pay in slip maintained in ordinary course of banking business. This pay in slip also bears my initial besides the initial on the Account Opening Form. The pay in slip is marked Ex PW 51/2. When an account ha opened cheques are issued to the customer. Cheque books are issued after entering the same in the cheque book register which is maintained in ordinary course of banking business. Such entries are made by the accountant of the branch. The customer enter acknowledges the receipt of cheque book. This is that part of the cheque book register which contained the entry regarding issue of cheque book No. 332501 to 332600 in favour of Vishal Plastic Enterprises on 5.3.84 under initial of the then accountant. His initial I know. It also bears signature of the account holder acknowledging the cheque. The entry is marked Ex C C No.29/10 148/250 149 PW 51/3. (Objected to).
The bank maintained statement signature card relating to the signature of the customer who opens an account. This is the specimen signature card of M/s Vishal Plastic Enterprises which has been signed by the person opening the account and his signature was verified by me. The same is marked Ex PW 51/4. A ledger sheet is also maintained in the bank in the ordinary course of banking business. This is the ledger sheet in respect of the above account which bears my initial. Ledger sheet is marked Ex PW 51/5. There is no operation transaction of the account after it was opened on 5.3.84."
192 According to PW125 Shri S C Mittal, Handwriting Expert signatures/writings at point Q240 on Ex PW 51/1 which is the Account opening form of SB account No. 31/47300 in the name of M/S Vishal Plastic Enterprises opened in the assumed name V Inderpal as its Proprietor and at point Q241 on Ex PW51/4 which is the specimen signature card of M/S Vishal Plastic Enterprises having the specimen signatures of the person who had opened the account and at point Q242 on Ex PW51/2 which is the payinslip vide which initial amount was deposited C C No.29/10 149/250 150 at the time of opening of this account is of accused Vipin Kumar Sharma which corroborates the version of prosecution that accused Vipin Kumar had opened this account as V InderPal Proprietor of Vishal Plastic Enterprises.
193 In this regard relevant portion of statement of PW86 Sh. Ghanshyam Singh is as under:
" I remained posted as postman of the Balli Maran Area from 11.6.63 to February, 1992 and this area was controlled by GPO, Kashmere Gate. I have seen the registered envelope Ex PW 86/A which was given to me for service upon the address mentioned on this letter. This letter could not be delivered to the addressee for the reasons mentioned in my report encircled red at point A which also bears my signature."
194 From the statement of PW86 Ghanshyam Singh it is proved that no such firm was existing on the given address which proves the dishonest intention of accused Vipin Kumar from the very beginning.
195 According to prosecution accused Vipin Kumar Sharma got revived his inoperative S.B. Account no.3573 with UCO Bank, New Subzi Mandi Branch, Azadpur, Delhi on 29.8.83 C C No.29/10 150/250 151 by depositing Rs.100/ & deposited six cheques of Rs. 65,000/, Rs. 24,000/, Rs. 38,000/, Rs. 65,000/, Rs. 65,000/, & Rs. 74,000/. In this regard relevant portion of statement of PW142 Sh. Ram Kumar Verma is as under:
" I have seen the AOF Ex PW 87/A vide which an account no. 3573 was opened by Vipin Kumar, accused present in the Court ( Correctly identified) and it was introduced by me at point B. I introduced him as he was known to our staff member Ishwar Singh and his uncle Om Parkash and Vipin Kumar was also residing at Sari Peepal Thala where they were residing. The account holder requested for issuance of cheque book vie Ex PW 87/D which was written and signed by Vipin Kumar. I issued the cheque book and made the entry in the cheque book issue register and also wrote the cheque numbers and the date at point A on this application Ex PW 87/D. I have seen pay in slip Ex PW 87/B1. It has been initialed by me at point A. On the reverse of this slip, the details of the cheque to be deposited was filled in by me at the request of Vipin Kumar as he stated that he did not know how to fill up the slip. The pay in slip Ex PW 87/3, another dt. 9.9.83, 20.10.83, 9.12.83 have bee initialed by me at point A and filled up by Vipin Kumar. The C C No.29/10 151/250 152 cheques deposited vide these pay in slips were credited in the concerned account. If the cheque does not bounce, then amount is credited in the account and then the account holder becomes entitle to withdraw the amount. I have seen the cheques dt. 5.9.83, 14.9.83, 26.9.83, 2.11.83, 24.11.83, 17.12.83 and 21.12.83 presented by Vipin Kumar. I passed these cheques alongwith Assistant Manager and thereafter cancelled them under my signature at point A. The cheques are Ex PW 142/A1 to A7. The money was withdrawn through above cheques by the account holder and signed on the back of each cheque in token of receipt. One loose cheque bearing No. 015257 Ex PW 87/E was made over to the account holder and this cheque was issued by me after making entry in the register as well as on the cheque at point A. Thereafter the account was closed and endorsement was made on the specimen signature card by me at point C on Ex PW 87/A."
196 In his cross examination he has deposed as follows:
... "I introduced the account of Vipin Kumar at the instance of Om Parkash as he sent a slip that he is unable to come." ......
... " It is wrong to suggest that accused Vipin Kumar had not opened any account or that he has ot filled in or signed the C C No.29/10 152/250 153 documents." ......
... " It is correct that pay in slips bear the ranch name and cheque number nor I asked Vipin Kumar to fill the same." ......
... " The reverse of the cheque was not signed by Vipin Kumar in my presence." ......
197 In this regard relevant portion of statement of PW87 Sh. Kuldeep Singh is as under:
" I have seen the AOF Ex PW 87/A which bears my signature at point A and I permitted the opening of this account by Sh. Vipin Kumar . The Account Opening Form was filled by me at the request of customer. Specimen signature of the customer was also obtained by me on the same card. The writing at point B is mine. Specimen signature of Sh. Vipin Kumar are at point C. I have seen pay in slip Ex PW 87/B1 to B7 which are filed and deposited alongwith the cheque and the pay in slips are initialed by the bank officer that the accused has been introduced and thereafter the cheque is sent to the clearing house and pay in slips are retained be the bank. Out of the seven pay in slips, I have signed only one pay in slip Ex PW 87/B2 at point A and one is pertaining to cash which C C No.29/10 153/250 154 is not required to be signed. Other five were signed by Mr. Ram Kumar Verma which initial I can identify. I have passed three cheques Ex PW 87/C1 to C3 which bears my signature at point A which were tendered by by Vipin Kumar himself and his signature appear on the back of these cheques. Vipin Kumar, accused present in the court today (correctly identified) I cannot say who has signed the ledger sheet shown to me. The cheque book was issued by Sh. Ram Kumar Verma vide Ex PW 87/D. After seeing one loose cheque no. 015271 dt. 29.12.83 I can identify the handwriting of Sh. R k Verma at point A on this cheque Ex PW 87/D."
198 PW117 & 118 had written the clearing register Ex PW 117/A to C and Ex PW 118/A respectively.
199 In this regard relevant portion of statement of PW 31 Sh. Dhiren Chander is as under:
" On 18.11.86 I handed over one outward clearing register of UCO Bank, New Subzi Mandi Branch for the period dt. 17.8.83 to 22.11.83, branch copy of clearing house schedule dt. 9.12.83 of UCO Bank, New Subzi Mandi, Azadpur, Delhi as certified copy of account no. 3573 of Vipin Kumar with New Subzi Mandi Branch to CBI. Aforesaid clearing register is Ex PW31/A. Branch copy of C C No.29/10 154/250 155 clearing house schedule is Ex PW 31/B and certified copy of SB Account no. 3573 is Ex PW 31/C. Those were taken into possession by Sh. B N P Azad, DSP, which bears my signature at point A vide memo Ex PW 31/D.
200 I have seen entry pertaining to deposit of cheque worth Rs. 65,000/ in account no. 3573 of Vipin Kumar in the clearing register Ex PW31/E. Aforesaid entry Ex PW31/F is in my handwriting. I made this entry in due course of business. This entry pertains to cheque drawn on State Bank of India, in relation to cheque No. 086422. I made this entry on the basis of cheque." 201 According to PW125 Shri S C Mittal, Handwriting Expert signatures/writings at point Q272 which is pay in slip dt. 29.8.83 vide which Rs.100/ were deposited and at point Q206 on Ex PW87/D vide which accused Vipin Kumar made a request for issuing a cheque book to him and the same was issued to him containing leaflets No.3981 to 3990, and signatures and writings on pay in slips Ex.PW 87/B2 to Ex.PW 87/B7vide which various cheques were deposited in the aforesaid account by accused Vipin Kumar are of accused Vipin Kumar. Signatures and C C No.29/10 155/250 156 body writings on cheques Ex.PW 142/A1 to Ex.PW 142/A7 and Ex.PW 87/C1 to Ex.PW 87/C3 and Ex.PW 87/E at point Q207 to Q228 is of accused Vipin kumar, which corroborates the version of prosecution that accused Vipin Kumar had got revived this account and obtained the cheque book . 202 According to prosecution accused Vipin Kumar Sharma opened account no. 19001 with UCO Bank, Kamla Nagar Branch, Delhi on 14.9.83 in his own name & depositing cheques of Rs. 65,000/, Rs. 47,000/ & Rs. 47,000/. In this regard relevant portion of statement of PW14 Sh. Anil Kumar Magoo is as under:
" I joined State Bank of India on 1.7.1983. My initial posting was in the Service Branch, SBI, Parliament Street, New Delhi. I have seen the original Attendance Register of State Bank of India, Service Branch, SBI, Parliament Street, New Delhi containing the attendance record of various employees including myself as well as Raman Kumar. Raman Kumar mentioned in Attendance Register is one of the accused persons present in the court. (Witness has correctly identified accused Raman Kumar ). As per the entries in the Attendance Register Ex PW 14/A I was on duty on 9.3.84, 10.3.84, 13.3.84, 15.3.84,16.3.84, 22.3.84 and 24.3.84 during C C No.29/10 156/250 157 evening shift. As per the entries in the Attendance Register, accused Raman Kumar was also present on duty on those dates in the evening shift. Out of the seven persons, mentioned in the register, four persons used to do typing work and others used to do sorting work of cheques received from R BI on branch wise basis. The floor incharge used to collect the inward clearing. As per procedure after the clearing house in the Reserve Bank of India, the cheques drawn at State Bank of India used to be sent to the service Branch alongwith a detailed statement of those cheques prepared at Reserve Bank of India/ Ex PW 14/B to Ex PW 14/E are the Reserve Bank Settlement Statements received by our service Branch on various dates alongwith the cheques. Entry No. 31 in Ex PW 14/B list dt. 9.3.84 relates to cheques which were delivered by Punjab & Sind Bank. Similarly, respective Entry No. 31 in the lists Ex PW 14/C and Ex PW 14/D relates to the cheques delivered in the clearing house by Punjab & Sind Bank. In the lists Ex PW 14/E Entry No. 31relates to the cheques delivered by Punjab & Sind Bank. Ex PW 14/F is the original list pertaining to the cheques received from RBI in clearing house on 9..84.".....
..." As per procedure, the inward clearing cheques received C C No.29/10 157/250 158 from RBI, used to be detailed in a type list prepared on the same day, in regular course of business. I have seen type list dt. 10.3.84 Ex PW 14/G. Encircled handwriting X on this type list is of accused Raman Kumar , which I identify. however, signature on type list are not of Raman Kumar. I have seen encircled endorsement X1 on type list Ex PW 14/H dt. 13.3.84. Said handwriting is that of accused Raman Kumar which I identify.".....
203 In this regard relevant portion of statement of PW85 Sh. P S Verma is as under:
" I worked UCO Bank, Kamla Nagar Branch as Special Assistant between Sep. 1974 to July, 1994. I have seen Account Opening Form Ex PW 74/A. I authorised to open the account in the name of Vipin Kumar Sharma. As the account was to be operated by one person only therefore I wrote the word 'Singly' in red ink and also wrote the name of the account holder Vipin Kumar Sharma in red ink and also the word 'account introduced' in red ink. Ex PW 74/A bears my signature in red ink is also mine which is at pointC. The account holder wrote his name, address, instruction as NIL and put his signature in my presence which is at point D. C C No.29/10 158/250 159 Mrs. Krishna Khosla, officer, has verified the signature of the introducer. The rest of the writings in blue ink on the front page of Ex PW 74/A were filled by the account holder in my presence, I have seen 10 cheques Ex PW 77/C1 to C9 and Ex PW 85/A. All these cheques have been passed by me and in toke of that i put my initials at point X on all the cheques."
204 In this regard relevant portion of statement of PW77 Sh. Raj Kumar Gupta is as under:
" The cheques used to be alongwith the pay in slips. I have seen pay in slips Ex PW 77/A1to A3. All these three slips bears my signature at point A in token of the fact that the account had been duly introduced. These pay in slips are received in ordinary course of banking business. The pay in slips remain in the bank whereas the cheques are sent to Chandni Chowk branch of our bank which used to be the clearing house for our branch. I have seen the certified copy of the ledger duly certified under Bankers Book Evidence Act and the same is Ex PW 77/B. Except one cheque the remaining cheques Ex PW 77/C1 to C9 are verified by me. All these cheques have been paid. Some of the cheque bear the signature of the drawer twice which is done by the drawer himself C C No.29/10 159/250 160 or sometimes asked by the bank in case of some doubt. the signature on the back of the cheque is also obtained by the person giving the token and collecting the token while making the payment."
205 According to PW125 Shri S C Mittal, Handwriting Expert signatures/handwritings at point Q266 & Q267 on Ex PW 77/A1, Q268 & Q269 on Ex PW 77/A2 , Q270 and Q271 on Ex PW 77/A, which are the pay in slips vide which the cheques were deposited in the bank, is of accused Vipin Kumar Sharma which corrborates the versioin of prosecution. 206 In this regard relevant portion of statement of PW78 Sh. Bhoodev is as under:
" I used to look after the clearing work in the branch. I have seen pay in slip dt. 20.7.83 on which authorisation of Sh. S C Talwani is there and the same is Ex PW 78/A. pay in slip and cheque used to be sent to the Chief Cashier alongwith the clearing register who used to check the instruments and other corresponding papers and then used to put his signatures on the pay in slip as well as on the clearing register. pay in slip Ex PW 78/A bears the C C No.29/10 160/250 161 signatures of Chief Cashier Sh. K L Khattar at point A which I identify as I am acquainted with his signatures and writing. I have seen the clearing register of UCO for the period starting from 30.3.83 to 12.11.83. The entry dt. 27/28/9/83 in respect of account No. 19001 in the name of Vipin Kumar Sharma for a sum of Rs. 65,000/ has been entered by me and it has been checked by Sh. K L Khattar, Chief Cashier. The relevant page is Ex PW 78/B and the entry is at point A. Thereafter clearing schedule is to be prepared. I have seen clearing schedule dt. 28.9.83 and the same is Ex PW 78/C which has been prepared by me and also signed by me at point A. It is also signed by Chief Cashier at point B. The clearing schedule is prepared in duplicate. One copy is sent alongwith the clearing cheques to our clearing house. in the clearing schedule we note the total amount and total number of cheques of a particular bank which is sent to the clearing house. Likewise Ex PW 77/a to C were also placed before the Chief Cashier who put his initials on the documents which I identify. These entries were also made in the clearing register. I have seen the clearing register of the branch for the period starting from 9.2.83 tp 10/11/83 maintained in the normal course of banking business. The entry dt. 21.10.83 on page no.231 C C No.29/10 161/250 162 in respect of account no. 19001 in the name of Vipin Kumar Sharma for a sum of Rs.47,000/ the necessary details have been written in his register by Sh. A P S. Chawla whose writing and signature I can identify."
207 In this regard relevant portion of statement of PW79 Sh. Amritpal Singh Chawla is as under:
" I have seen the page no.52 of the clearing register of the branch for the period starting from 9.11.83 to 25.5.84. The entry at page no.52 has been partly written by me and by Mr. Ashok Jain, Asstt. Cashier. The relevant page is Ex PW 79/A and entry at serial No.60 relating to account No.19001 in the name of Vipin Kumar Sharma is at point A. This entry has been written by Sh. Ashok Jain. On page Ex PW 79/A, entries upto serial No.58 are written by me and rest entries are written by Ashok Jain. Clearing schedule dt. 22.10.83 Ex PW 79/B has been written by me and it bears my signature at point A and also that of Sh. Baljeet Singh, Head Cashier at point B, whose signature I can identify. I have seen cheque No. 680501 of UCO Bank, Kamla Nagar Branch dt. 13.10.83. It was dealt with by me and the amount of Rs.35,000/ was withdrawn by the account holder and corresponding entry at point A in the ledger C C No.29/10 162/250 163 sheet Ex PW 77/B was made by me."
208 According to PW125 Shri S C Mittal, Handwriting Expert signatures/handwritings at point Q264 & Q268 on Ex PW 78/A, which is the pay in slip dt. 20.7.83 vide which the cheques were deposited in the bank, is of accused Vipin Kumar Sharma. According to Handwriting Expert signatures and body writing on cheques Ex.PW 85/A, Ex.PW 77/C1 to Ex.PW 77/C8 at point Q181 to Q201 is of accused Vipin Kumar Sharma which corrborates the version of prosecution that accused Vipin kumar Sharma had opened this account as Bipin Kumar Sharma.
209 According to prosecution accused Vipin Kumar Sharma opened S.B. account no. 2013 with P & Sind Bank, Asaf Ali Road on 13.9.83 in the name of Vipin Kumar Chawla s/o Sh. D N Chawla, r/o 16/2, Bajaj House, 87, Nehru Place, N. Delhi. In this regard relevant portion of statement of PW141 Sh. Satinder Singh Ahuja is as under:
" I have done my graduation from Khalsa College in the year 1976. Raman Kumar, accused present in the court today (correctly identified) and S. Abijit Singh were my class fellow. Raman C C No.29/10 163/250 164 Kumar was working in LIC, Asaf Ali Road and he joined SBI, Chandni Chowk Branch. I have seen AOF Ex PW 21/A vide which an account was opened by Vipin Kumar Chawla and I have introduced him at the request of Raman Kumar in the relevant column at point A. This form was filled in and signed by Vipin Kumar in my presence. Specimen signature card Ex PW 21/B was not signed in my presence. pay in slip Ex PW 89/B for Rs.5/ was filled by me at the request of Raman Kumar. The pay in slip Ex PW 141/A for R.300/ has also been filled by me at the request of Vipin Kumar, accused present in the court today (correctly identified). As I insisted present of Raman Kumar for opening the account and he did not turn up on that day, this amount of Rs.300/ was sent to sundry account as account could not be opened on that day. This amount was brought to saving account No.2013 vide voucher Ex PW 89/A. I have seen pay in slip of Rs.74,000/ Ex PW 115/C written by Vipin Kumar and signed by him and through this slip, the cheque was deposited and credited in that account which is reflected in statement of account. Cheque Book bearing No. C C No.29/10 164/250 165 285251 to 285260 was issued to the account holder. The account holder came to me for withdrawal of amount without cheque book, therefore, a loose cheque Ex PW 21/D filled and signed by Vipin Kumar, was issued through which he got prepared one pay order for Rs.74,000/. The pay order Ex PW 21/C was prepared and signed by the officer at that time. This account was closed on 2.11.83 and the balance in that account was paid to the account holder vide cheque Ex PW 89/C. This cheque was also written and signed by Vipin Kumar."
210 In his cross examination he has stated as follows:
" It is correct that I have introduced the account of Vipin Kumar at the instance of Raman Kumar and till then I did not know the personal details of Vipin Kumar. accused Raman Kumar did not sign on any paper. I have nowhere mentioned that I have introduced Vipin Kumar at the instance of Raman Kumar. There was no identification of accused Vipin Kumar by me in CBI office. It is wrong to suggest that accused Vipin Kumar present in court today, is not the person who had come to me with accused Raman Kumar for opening the account. I cannot say whether his surname was Chawla or not. It is wrong to suggest that C C No.29/10 165/250 166 I am deposing falsely at the instance of CBI."
211 In this regard relevant portion of statement of PW 89 Sh. Ramesh Kumar Ohri is as under:
" I have seen specimen card Ex PW 21/A in the name of Vipin Kumar Chawla and on this card I have put the account number as 2013 in my own hand at point A. I have seen the transfer voucher dt. 16.9.83 for a sum of R.300/ pertaining to account no. 2013 which was prepared in ordinary course of banking business. I have put my signature at point A on transfer voucher Ex PW 89/A. I have seen pay in slip dt. 15.9.83 for a sum of rs.74,000/ pertaining to account No. 2013,. I do not know what transaction was conducted through this pay in slip as it is not signed or initialed by me. I have seen the pay order Ex PW 21/C which was issued by me and bears my signature at point A and the same was counter signed by Mr. Bindra at point B whose signature I identify. This pay order was prepared on the basis of cheque Ex PW 21/D relating to account no.2013 given by the account holder. The endorsement on the cheque Ex PW 21/D is in my hand which is at point A. I have seen the pay in slip Ex PW 89/B vide which Rs.5/ were deposited for opening the account and it also bears my initial at point A. As C C No.29/10 166/250 167 per copy of the ledger sheet, this account was closed on 2.11.83 on the basis of the letter given by account holder. He also surrendered the remaining cheques while closing the account. The amount lying in the account at the time of closing was paid in cash to the account holder on the strength of a cheque bearing No. 285252 dt. 2.11.83. This is the cheque which was dealt by me in ordinary course of banking business. The cheque is Ex PW 89/C and I put my endorsement in red ink at point A on the face of the cheque regarding the documents surrendered to close the account."
212 According to prosecution accused Vipin Kumar Sharma opened account no. 8342 with P & Sind Bank, Karol Bagh on 26.8.83 as Vipen Sharma & deposited cheques of Rs.46,000/ & Rs. 38,000/. This account was closed on 2.11.83 by withdrawing entire amount. In this regard relevant portion of statement of PW138 Sh. Sohan Singh Kalra is as under:
" While residing at Adarash Nagar and Majlis Park, I came to know accused Vipin Kumar Sharma present in court today (correctly identified). At that time, he was Gate keeper in Alpana Cinema. I had been meeting him in my residential area C C No.29/10 167/250 168 as well as in the bus and I had also visited his house once or twice. Once he came to me for loan from the bank for which I refused. Thereafter Vipin Sharma asked for opening the current account and introduction by me and for that also, I refused. Then he asked for opening a saving bank account which I introduced. I have seen the Account Opening Form Ex PW 45/A of account no. 8342 which has been introduced by me at point A. Vipin Sharma wrote his name and put his specimen signature on the application form in my presence. The columns on AOF about father's name, address and occupation have been filled by me at his request. The specimen signature card pertaining to this account is Ex PW 45/B and it was signed by Vipin Sharma in my presence and also in the presence of Officer Incharge (saving Account). My signature as introducer has also been verified by the Officer Incharge Sh. K R Gupta."
213 In his cross examination he has stated as follows:
" The house of accused Vipin Kumar (A3) was at a distance about ½ km. from my house. I had visited the house of accused no. 3 in 1982 or 1983 but I do not exactly remember the year."...... C C No.29/10 168/250 169
...... "At the time of opening of account in 1983, the bank did not ask the account holder to produce any document regarding his identification or residential address. At that time, there was no rule to obtain the proof of residence and identification.".......
....... "I had told the BI officials that I can recognise the said Vipin Sharma. Vipin Sharma was not shown to me by the CBI at the time of recording my statement or prior to appearance today in the court."
214 In this regard relevant portion of statement of PW 76 Sh. Kanwar Raj Gupta is as under:
" I have seen Ex PW 45/A Account Opening Form having account No. 8342. After obtaining necessary permission from the Sr. Manager, and the introduction in the account, this account was opened by me. I signed on Ex PW 45/A at point C. This account was introduced by Mr. Sohan Singh Kalra, officer of that Branch by signing at point D. Mr. Gurpreet Singh, Sr. manager ordered to open the account by signing at point E."
215 In this regard relevant portion of statement of PW45 Sh. Arsh Sehgal is as under:
" In the year 1983 I was working as Officer in Punjab & Sind C C No.29/10 169/250 170 Bank, Kailash Colony, New Delhi. I have seen Account Opening Form (saving) of account No. 8342, which is Ex PW 45/A. Sh. S S Kalra was also working as Officer in the said branch and he had introduced the account holder . I can identify his signature as I have worked with him and seen him writing and signing. Signature of Sh. S S Kalra are at point A of Ex PW 45/A. Signature of Sh. S S Kalra were attested by Sh. K R Gupta, who was also working as Officer in the said branch. I am acquainted with Signature of Sh. K R Gupta which appears at point B. There is an endorsement at the bottom of Account Opening Form encircled blue regarding issue of cheque book I have seen specimen signature card relating to the aforesaid account Ex PW 45/B, which bears the signature of Sh. K R Gupta at point A. Ledger sheet of the aforesaid account is Ex PW 45/C, which bears the signature of Sh. K R Gupta at point A. pay in slip for deposit of the amount for opening the account Ex PW 45/D, which bears the signature of Sh. K R Gupta at point A. Another pay in slip vide which amount of Rs.38,000/ was C C No.29/10 170/250 171 deposited is Ex PW 45/E, and it bears the signature of Sh. Mani at point A. Another pay in slip vide which amount of Rs.46,000/ was deposited is Ex PW 45/F, which bears the signature of Sh. K R Gupta.
I have seen four cheques Ex PW 45/G1 to G4. On cheque Ex PW 45/G1 I can identify the signature of Sh. K R Gupta and Sh. Kambose at points A and B respectively. On cheque Ex PW 45/G2 I identify the signature of Sh. K R Gupta and Sh. Kambose at points A and B respectively. On cheque Ex PW 45/G3 I identify the signature of Sh. K R Gupta at point A. The CBI had seized aforesaid document vide memo Ex PW 45/H and J and I signed both the memos as attesting witness at point A."
216 In his cross examination he has stated as follows:
...... " It is wrong to suggest that the aforesaid documents were not seized in my presence. It is wrong to suggest that documents were not signed by the aforesaid officers, whose signature I identify."
217 In this regard relevant portion of statement of PW73 C C No.29/10 171/250 172 Sh. Satinder Pal Singh is as under:
" I have seen the clearance register of Karol Bagh Branch for the period 16.9.83 to 2.11.83. This register is maintained in regular course of business in the bank and pertains to the period during which I was posted in Karol Bagh Branch. This register is Ex PW 73/A. I have seen the clearance register for the period 6.8.83 to 15.9.83 which is Ex PW 73/B. The entry dt. 2.9.83 appears at page no.71 and Sl.No.76. This entry pertains to clearing cheque sent by us and last number of cheque is 321. This entry is in the had of Sh. Gurcharan Singh Bhatia duly authenticated by me by putting my initial at point A. This entry is Ex PW 73/B1. The cheque is drawn on SBI and the same is in favour of Sh. Vipin. The cheque is of Rs. 46,000/. Regarding this entry we had received the cheque alongwith pay in slip and thereafter the entry was posted in this register. The clearing schedule of 2.9.83 was prepared by Sh. G S Bhatia which is Ex PW 73/C and it also bears my signature at point A. This clearing schedule alongwith the cheques is sent to clearing house. The entry dt. 17.9.83 is in Ex PW 73/|A at page No.3 and Sl. no.24. This entry pertains to Vipin Sharma in respect of cheque drawn o SBI, Nazafgarh for Rs.38,000/ and last number of cheque C C No.29/10 172/250 173 are 487. This entry is in the hand of Braham Parkash and initialed by me at point A. The entry is Ex PW 73/A1. The clearing schedule was prepared by Sh. G S Bhatia which is Ex PW 73/D and signed by me at point A."
218 According to PW125 Shri S C Mittal, Handwriting Expert signatures/handwritings at point Q165 account opening form of the abovel said account Ex.PW 45/A, at point Q166 on specimen signature card of this account Ex.PW 45/B & on Q167 to Q175 on cheques Ex PW 45/G1 to Ex.PW 45/G4 are of accused Vipin Kumar Sharma which corrborates the version of prosecution that accused Vipin kumar Sharma had opened this account as Vipen Sharma and operated the same. 219 According to prosecution accused Vipin Kumar Sharma opened account no. 1289 with P & Sind Bank, defence Colony, N.Delhi on 18.2.84 in the name of non existing firm M/s SwastiK Enterprises, G18, Deepali Building, Nehru Place, N Delhi posing himself as Vipen Chander as proprietor. In this regard relevant portion of statement of PW49 Sh. Arvind Wadhawan is as under:
" Account bearing No. 1289 of Bipin Chandra was opened C C No.29/10 173/250 174 by him and it bears my signature at the bottom of introduction column in the Account opening form. Bipin Chandra put his signature in the application form at two places at mark A & B on the Ex PW 49/A. I have written in red ink thereby the sign of the introducer and account No. and also signature verified and below that I have also put my signature which are marked collectively at point C. Mr. Rajpal, the Manage of the branch had authorised the opening of the form and in toke of that he put his signature. I know his signature and same is at point D. Voucher for the sum of Rs.1011/ for the account 1289 bears my signature (the same is shown to me). The voucher is Ex PW 49/B. I have also seen the ledge of the party which has been placed before me. the deposit of rs.1011/ pertaining to account No.1289 has been initialed by me. The Statement of account in two sheets is Ex PW 49/C1 & C2. The constituent of the bank is entitled to have cheques and accordingly cheque book bearing No. 525501 to 525525 was issued on 18.2.84 to the account holder who put his signature acknowledging the cheque on the cheque book issue register. I identify that signature and writing in the said register Ex PW 49/D."....
C C No.29/10 174/250 175
...... "In case few cheques were not returned back then it was presumed that those cheques were also cleared and we used to give credit in the account in our branch. The parties used to submit the cheques drawn on other branch or other banks accompanied with a pay in slip which used to be retained in our branch. The pay in slip for a sum of Rs.2,90,000/ bears my initial as the same was submitted by the account holder M/s SwastiK Enterprises apart from my signature it also bears the signature of Sardar Gurjeet Singh whose signature I know. Document already marked PW35/A6. The clearing schedule of Defence Colony branch of Punjab & Sind Bank dt. 8.3.84, 23.4.84 (duplicate) were prepared in our branch and I have put my initials on those documents to authenticate the same. The two schedules dt. 8.3.84 and 23.4.84 are Ex PW 49/E && F. The clearing register of Defence Colony branch of Punjab & Sind Bank dt. 8.3.84, 23.4.84 were prepared in official capacity and those bear my initials in token of the preparation. The clearing register dt. 8.3.84 and 23.4.84 is Ex PW 49/G & H. The debit of said clearing voucher dt. 23.4.84 for a sum of Rs. 9,15,561.54 was prepared and signed by the said voucher is Ex PW 49/J."
C C No.29/10 175/250 176
220 In his cross examination he has stated as follows:
..... " I have seen entry giving the particulars of cheque book and account no. This is Ex PW 49/D not in my handwriting. Vol. It bears my initials as the party took the cheque book in my presence by putting his signature in the register. It is wrong to suggest that that the above said entry was not prepared in my presence. It is wrong to suggest that I am deposing falsely."
221 In this regard relevant portion of statement of PW139 Mrs. Ritinder Kaur is as under:
" I have remained posted in Defence Colony branch of Punjab & Sind Bank during 198384, exact date and period I do not remember. At that I was Incharge sometimes of current account and sometimes of saving account. I do not remember orally but after seeing the account opening form Ex PW 49/A, I can say that an account was opened in the name of Swastik Enterprises which was being operated by Sh. Vipin Chandra. Due to lapse of time, I cannot identify Vipin Chandra the account holder. Ledger sheet used to be maintained in the bank in respect of each and every account. I have seen Ex PW 49/C1 and these entries have been initialed by me except the first entry at point A. At Page no.2 of C C No.29/10 176/250 177 Statement of account Ex PW 49/C1, I have placed my initials in token of debit and credit entries which have been made during the banking business. I have seen three pay in slips dt. 8.3.84 for a sum of Rs.92,954/, Rs.83,099/ and Rs.2,81,675/ which are to be filed by the person depositing the cheques or cash and these must have been received in the branch. I have initialed these pay in slips only after duly approved by the Clearing Officer. These pay in slips are Ex PW 139/A1 to A3 bearing my initial at point A. Similarly the pay in slips dt. 12.3.84 for a sum of Rs.2,90,000/, dt. 15.3.84 for a sum of Rs.2,72,000/, dt. 18.4.84 for a sum of Rs.2,72,000/, dt. 23.4.84 for a sum of Rs.1,82,000/ and dt. 23.4.84 for a sum of Rs. 2,54,000/, also bear my initial at point A and these pay in slips are Ex PW 139/B1 to B5. I also used to pass the cheques upto Rs. 10,000/ individually and above that jointly with another Manager. I passed the cheques dt. 13.3.84 Ex PW 139/C1, 15.3.84 Ex PW 48/F, 21.3.84 Ex PW 139/\c2, 12.4.84 Ex PW 52/I, 23.4.84 Ex PW 52/2, 25.4.84 Ex PW 52/3, 30.4.84 Ex PW 129/C3, 7.5.84 Ex PW 52/4, 12.5.84 Ex PW 52/5 respectively under my signature at point A. This current account No. 1289 was closed on 12.5.84 and I put my initial on the cheque Ex PW 52/5. The credit and debit voucher C C No.29/10 177/250 178 both dt. 25.4.84 were prepared in the branch for the reason 'clearing cheque returned unpaid' as per voucher. However, subsequently a sum of Rs.4,36,000/ was given credit to the account holder which I have passed. All the credit and debit entries with reference to the pay in slips and cheques referred to above have been properly adjusted in the ledger sheet Ex PW 49/C1 & C2 which bears my signature at point A."
222 According to PW125 Shri S C Mittal, Handwriting Expert signatures/handwritings at point Q112 & Q113 on account opening form of this account Ex.PW 49/A & Q114 & Q115 on specimen signature card of this accounrt and on pay in slips Ex.PW 139/A1 to Ex.PW 139/A3 at point Q247, Q246, Q245, on pay in slip Ex.PW 35/A1 to Ex.PW 35./A7 at point Q 248 to Q255 and on pay in slip Ex.PW 48/E at point Q254 and on cheques Ex.PW 139/C1 at point Q116 & Q117 & Ex.PW 39/C2 , at points Q120 & Q121 Ex.PW 139/C3 Q128 & 129 and on cheque Ex.PW 48/F at points Q118 & Q119 and on cheques Ex.PW 52/1 to Ex.PW 52/5 at points Q122 to Q125, Q127, Q128, Q130, Q131, Q132, Q133 are of accused Vipin C C No.29/10 178/250 179 Kumar Sharma which corroborates the version that this account was opened and operated upon by accused Vipen Chandra for M/s Swastik Enterprises.
223 According to prosecution accused Vipin Kumar Sharma opened account No. 2475 in Punjab & Sind Bank, Naraina Branch in the name of M/s Simplex Traders as Vipin Mohan Sharma which was introduced by Hari Charan Singh. In this regard relevant portion of statement of PW 7 Sh.Gurmukh Nihal Singh is as under:
"In the year 1983 I was posted in the Account Department, Punjab & Sind Bank, Naraina, New Delhi. I know accused Raman Kumar present in the Court. He was my friend in Khalsa College, new Delhi. In January, 1984 I received a telephone call from accused Raman Kumar. He requested me that his friend Vippin Kumar wanted to open a current account in Punjab & Sind Bank, Naraina Branch which was functioning at the ground floor of the same building in which the accounts department was located. He further requested me that his friend Vippin Kumar would visit me and I help him in getting C C No.29/10 179/250 180 the account open in his favour. So far as I recollect, in February 1984 in furtherance of said telephone call from Raman Kumar, Vippin kumar contacted me Punjab & Sind Bank, accounts department for my assistance in getting his account opening form introduced by someone. I took accused Vipin Kumar to the premises of M/s Singh Batteries located opposite the building of Punjab & Sind Bank. I requested them to introduce the account of Vippin Kumar. On my request S. Harcharan Singh of M/s Singh Batteries signed the Account opening form pertaining to current account of Vippin Kumar as introducer. I have seen Account opening form Ex PW 7/A. It was filled in by accused Vipin Kumar in my presence . He signed the application form Ex PW 7/A as Vippin Mohan Sharma. Introducer Harcharan Singh also signed the Account opening form in my presence. I identify said Vippin Kumar as one of the accused present in the court."
224 In his cross examination he has stated as follows:
" S. Harcharan Singh did not know Vippin Kumar and he introduced the account only on my recommendation. In presence of C C No.29/10 180/250 181 Harcharan Singh accused Vipin Kumar disclosed his name as Vippin Mohan Sharma. I was not aware of full name of Vipin Kumar, when I took him to S. Harcharan Singh. After that day I did not see him accused Vipin Kumar. However once he visited me, in my office, after the opening of the account. I do not remember the dates of that visit. It is wrong to suggest that accused Vipin Kumar present in the Court is not the same person, who was introduced by S. Harcharan Singh at my instance for the opening of the bank account. In my presence , Vippin Kumar took that account opening form to the bank."
225 In this regard relevant portion of statement of PW 20 Sh. Harcharan Singh is as under:
"In the year 1984 I was running a shop under the name and style of M/s Singh Battery House, in front of Punjab & Sind Bank, Naraina, New Delhi branch. I was having an account in Punjab & Sind Bank, Naraina, New Delhi. I have seen Account opening form Ex PW 7/A pertaining to opening of current account in the name of Vippin Mohan Sharma. This Account opening form bears my signature at point A, as introducer. Said Vippin Mohan Sharma was not known to me C C No.29/10 181/250 182 at that time. I introduced his account on the request of Gurmukh Nihal Singh, an employee of Punjab & Sind Bank. Gurmukh Nihal Singh came to my shop alongwith the person concerned and requested me to sign his Account opening form as an introducer. Therefore, I signed the Account opening form as an introducer. For the purpose, of record, I noted down the address of said person who opened the account in my notebook. I cannot identify the person whose account I introduced."
226 In his cross examination he has stated as follows:
"I signed the Account opening form at my shop. I did not go to the branch for opening of the said account and completion of formalities. Account opening form was already filled up. I cannot say who filled up that Account opening form."
227 In this regard relevant portion of statement of PW 41 Sh. Pardeep Daga is as under:
" The procedure of outward was like this. Whenever cheques were presented to our branches with the pay in slips for the purpose of collection of payment, the list of those cheques were prepared by those branches irrespective of the question of drawee banks. The branch would thereafter send those cheques to us alongwith the C C No.29/10 182/250 183 clearing schedule in which the number of cheques and the total amount thereof was mentioned. Likewise, clearing schedule and the cheques were received from all the branches during particular day.
When these cheques and their supporting clearing schedule had been received in our clearing branch, we sorted out the cheques bank wise. Thereafter, bank wise schedule clearing schedule i.e. RBI clearing schedule was prepared in respect of each drawee bank separately. Thereafter the bunches of cheques pertaining to a particular drawee bank were put in the boxes kept for that bank in the RBI Clearing House. The copy of the schedule was given to RBI officials. One copy was also put in the box with the cheque. Thereafter the cheques used to go to the service branches of the different banks and they completed the procedure for passing of cheques and credit of payment. The drawee bank would return the entire bunch of cheques in case there any difference is found in number of cheques in clearing schedule and the cheque actually enclosed. In case the bunches were not returned by any bank, it was deemed that the number of cheques mentioned in our clearing schedule and total cheques enclosed have tallied and there is no C C No.29/10 183/250 184 dispute in the total number of cheques. In case of difference, we direct stoppage of payment. In case no such information is received, we presumed that cheque has been cleared and the amount has been credited.
I have been shown clearing Schedule of Punjab & Sind Bank, Naraina Branch dt. 9.3.84. It is signed by our Manager Sh. Amarjit Singh at point A. It now Ex PW 41/A. I have also been shown a slip i.e. outward scroll/patti. it is Ex PW 41/B. It is also of our branch at Naraina. on that day i.e. 9.3.84 126 cheques were sent to our Naraina Branch with scroll. The total amount was Rs. 21,87,047.89p. RBI consolidated statement has been shown to me. it was prepared by Sh. d S Kochar and signed by Manager Sh. Amarjit Singh. It is Ex PW 41/C. The signature of Sh. Amarjeet Singh are at point A which I identify. The statement is of 9.3.84 for Rs.2,83,46,601.82p. The amount claimed by us on that day came to Rs. 31,02,864.17p. The relevant entry is Ex PW 41/D. Ex PW 41/E is the patti of the cheque i.e. number of cheques delivered us to State Bank of India. The entry in the patti is Ex PW 41/F. The clearing schedule pertaining to our Naraina Branch dt. 14.3.84 is Ex PW 41/G"
C C No.29/10 184/250 185
228 In this regard relevant portion of statement of PW 103 Sh. Simarjeet Singh is as under:
" I remained posted in Punjab & Sind Bank, Naraina Branch from February, 1979 to 1986 as Clerk. I was allotted the duty in Clearing Cell at Naraina Branch. In Clearing Cell , we prepare the schedule bank wise in respect of the cheques received for clearing in the branch. I have seen the schedule dt. 14.3.84, 23.3.84, 19.4.84,25.4.84. All these schedules are prepared by me in my own hand. The schedule dt. 23.3.84 is Ex PW 24/D25, dt. 25.4.84 is Ex PW 24/D27, dt.19.4.84 is Ex. PW24/D29. The schedule dt. 14.3.84 is Ex PW103/A and it is signed by the officer at that time and prepared in my hand. I have seen the voucher dt. 24.3.83 Ex PW 103/B. The same is written in my handwriting and signed by the officer. I have seen the voucher dt. 26.4.84 Ex PW 103/C The same is written by me and signed by the officer."
229 In this regard relevant portion of statement of PW 114 Sh. Gurcharan Singh is as under:
" I remained posted as officer in Punjab & Sind Bank, Naraina Branch during the year 1979 to 1987. I have seen the clearing schedule of Naraina Branch dt. 9.3.84 Ex PW 41/A1, dt. C C No.29/10 185/250 186 14.3.84 Ex PW 41/G, dt. 23.3.84 Ex PW 24/D5, dt.19.4.84 Ex PW 24/D29, dt. 25.4.84 Ex PW 24/D27. All these schedules were prepared in our branch and all bears my initial at point A. The branch was also maintaining clearing register in respect of the cheques drawn on other banks for the purpose of presentation thereof and collection of the amount from the bank concerned. I have seen the entries dt. 9.3.84, dt. 14.3.84, dt. 23.3.84, dt.19.4.84 and dt. 25.4.84 in the ledger. These entries were made in ordinary course of banking business and I initialed all the entries in my official capacity. The entries in respect of the above dates are Ex PW 114/A to E. To the account holder, the cheque book used to be issued after making entry in the register meant for this purpose. The customer as well as the office used to sign the register in the space provided in token of the receipt of cheque book. M/s Simplex Traders bearing account No. 2475 was issued a cheque book which was acknowledged by the account holder . The concerned officer has put his initial in the relevant column. The relevant entry is Ex PW 114/F in register (D129). I know Mr. D R Manmohan Singh, who was working in the Punjab & Sind Bank, Naraina Branch. To the best of my knowledge, at present he is in America. I have seen C C No.29/10 186/250 187 the seven pay in slips dt. 9.3.84, two slips dt. 14.3.84, dt. 23.3.84, dt.19.4.84 and dt. 25.4.84. These pay in slips were submitted in our branch by the customer alongwith the cheques drawn on banks other than my branch. The clearing schedule and clearing register were prepared with reference to these pay in slips and cheques. As I checked the pay in slips, I put my initial and signatures on the pay in slip and also on the clearing schedule and clearing register. The above pay in slips are Ex PW 114/G1 to G7. I have seen eight cheques Ex PW 114/H1 to H8 relating to account No. 2487 under which the account holder withdrew the money from the bank. These cheques were passed by Sh. D R Manmohan Singh whose initial are at point A on all the cheques. The person who withdraw the money through cheques sign on the reverse of the cheque and all these cheques are 'self cheques signed by the customer on the reverse of each cheque in token of having received the money. Vide cheque Ex PW 114/H8 the customer closed this account after withdrawing all the balance amount on 13.5.84. Withdrawals are recorded in the ledger sheet maintained by the bank. The ledger sheet is Ex PW 53/3 ."
230 In this regard relevant portion of statement of PW 132 C C No.29/10 187/250 188 Sh. Narender Masand is as under:
"The page Ex PW 132/B contains the entries No.124 & 125 relating to Simplex Traders which are in my handwriting. Both these cheques were sent for clearing. if the cheques are returned the entry to this effect was made in the register by the officer and if credit has already been made, then the account is debited on return of the cheque.
The second register is starting from the date 26.3.84 to 17.5.84. The entries dt 19/4/84 at serial No.100 and 101 at point A and B on page Ex PW 132/B are in my handwriting and these entries are also relating to Simplex Traders and the cheques wee sent for clearing. In this case cheques were not returned as there is no making by the officer to this effect on this page. The consequences of non return of the cheque is crediting of the amount of cheque in the account of the parties.
I have seen entries dt. 25.4.84 from serial No.82 to 182 in the third register. Thee entries are in my handwriting. The entry dt. 25.4.84 at serial no.145 on page e..132/C pertains to Simplex Traders are in my handwriting. In this case cheques were not returned as there is no marking by the officer to this effect on this C C No.29/10 188/250 189 page. The consequences of non return of the cheque is crediting of the amount of cheque in the account of the parties."
231 According to PW125 Shri S C Mittal, Handwriting Expert signatures/handwritings at point Q135 & Q136 on account opening form of this account Ex.PW 7/A &at point Q138 & Q139 on specimen signature card of this accounrt and on pay in slips Ex.PW 114/G1 to G7 at point Q256 to Q262, and on cheques Ex.PW 114/H1 to H8 on point Q149 to 156 are of accused Vipin Kumar Sharma which corroborates the version of prosecution that this account was opened and operated upon by accused Vipen Kumar as Vipin Mohan Sharam.
232 According to prosecution after receiving the cheques, the same with payinslips written by the A/c holders were processed in the concerned Branches. In this process the officers concerned with clearing department of the Branches used to prepare cheque schedules in duplicate containing total amount of cheques received by a particular bank. First copy of cheques schedule was to be sent to Service Branch of the Bank along with cheque received for clearing. The Second copy was office copy. However, a C C No.29/10 189/250 190 permanent Outward Clearing Register was to be maintained in the Branch which contained columns, such as, Cheque No, A/c No, a/c Holder, cheque drawn on Bank, amount of Cheque etc. Though the cheques in original have been fraudulently removed in course of transit, yet the cheque Numbers are available in the concerned Branches in the Branch Outward Clearing Register which helped the I.O to trace out as to which cheques were withheld and could not be sent to concerned SBI Branches. In brief, it is argued that cheques withheld, had in fact been issued from one of the Branches of SBI where A3 had opened his Account. As the cheques could not reach the concerned branches of SBI hence the concerned branches had no opportunity to consider whether there was sufficient amount or not in the account to honour the cheques. Since the cheques in question were removed/destroyed, the presenting Branch of the bank on expiry of three days, were under obligation to allow credit to the A/c of the amount noted in their Outward Clearing Register. The prosecution has proved all the Outward Clearing Registers of the Branches which contained cheque Numbers and other particulars including the name of branch where cheques were deposited and amount of cheques etc. C C No.29/10 190/250 191 DETAILS OF CHEQUES ISSUED BY A3 AS PER OUTWARD CLEARING REGISTER IS AS UNDER:
A3 PSB Naraina 8 cheques
Cheque Bank Ext. of outward
No. clearing register
332507 SBI Chandni Ext 114/A pp14 D62
Chowk
778404 SBI Shakurbasti do
778411 do Ext 132/A pp 17 D62
332509 SBI Chandini
Chowk Ex PW132/B, page18
dt. 14.3.83
332502 do Entire Register Ext
53/1 pp no.32 dt
23.3.83
332508 do Ext 132/B pp 22/D62
778412 do Shakurbasti do
778401 do Ext 132/C pp 31 D62
C C No.29/10 191/250
192
PSB Defence Colony 12 cheques
Cheque Bank Ext. of Outward
No. Clearing Register
332505 SBI Chandni Ext PW67/1 Page 10
Chowk D73(1)
970857 SBI Mayapuri do
778403 SBI Shakburbasti D66 A/c opening
form D69 pay in slip
332503 SBI Chandni PW35/G pp 16
Chowk DD73(1)
778402 SBI Shakurbasti Ext 35/L3 pp 26
D73(1)
970853 SBI Mayapuri Ext 35/L1 pp 38
D73(1)
332506 SBI Chandni Ext PW30/15 pp 90
Chowk D73 Vol.I
778405 SBI Shakurbasti Ext 35/C1 pp 90 D73
Vol.I
970852 SBI Shakurbastii Ext PW35/G pp
18/4/84
C C No.29/10 192/250
193
970852 SBI Mayapuri Ext 35/G pp dt
18.4.84
970854 SBI Mayapuri Ext 48/C pp 7D73(II)
332510 SBI Chandni Ext 48/A P7 D73(II)
Chowk
PSB Asaf Ali 1 cheque
Cheque Bank Ext. of Outward
No. Clearing Register
402485 SBI Nazafgarh 115/A D83 pp 13
PSB Karol Bagh 2 Cheques
Cheque Bank Ext. of Outward
No. Clearing Register
086421 SBI Paharganj A3 Ext 73/B, D93
6.8.83 ti 17.9.83 pp71
402487 SBI Nazafgarh A 3 73/A1 D93 pp3
16.9.83 to 2.11.82
UCO Kamla Nagar 4 cheques
C C No.29/10 193/250
194
Cheque Bank Ext. of Outward
No. Clearing Register
086425 SBI Paharganj Ext 78/A+B page 191
D99
086427 SBI do Ext 78/D Page 231
D99
086428 SBI -do Ext PW 79/A Page 52
D39
402490 SBI Nazafgarh Ext 78/E Page 37 D99
23.11.83 to 29.5.84
UCO Bank Sabzi Mandi 6 cheques
Cheque Bank Ext. of Outward
No. Clearing Register
086422 SBI Paharganj Ext 31/F PP 45
402482 SBI Nazafgarh Ext 117/C Page 60
086424 SBI Paharganj Ext 117/A to C pp 65
402488 SBI Nazafgarh Ext 83A Page 131
C C No.29/10 194/250
195
402489 SBI -do Ext 83/B Page 73
086429 SBI Paharganj Ext 117B Page 95
233 Prosecution has proved Pay in slip filled in/ written by
account holders which have been seized during the investigation, details of which is as under:
PSB Naraina (7 pay in slips) 332507 2,72,000/ PW114/G1 778404 1,46,000/ PW114/G2 778411 1,91,000/ PW114/G3 332509 2,92,000/ PW114/G4 332502 2,81,000/ PW114/G5 332508 3,80,000/ PW114/G6 778412 1,91,000/ PW114/G7 778401 A3 PSB Defence Colony C C No.29/10 195/250 196 332505 92,954/ Ext PW 139/A1 970857 83,099/ PW139/A2 778403 2,81,675/ PW139/A3 332503 2,90,000/ PW30/A1 778402 2,72,000/ PW35/A5 970853 2,90,000/ PW35/A6 332506 2,72,000/ PW35/A4 778405 2,72,000/ PW35/A3 778406 1,81,000/ PW35/A1 970852 1,64,000/ PW35/A2 970854 1,82,000/ PW48/D 332510 2,54,000/ PW48/E Asaf Ali Road Branch D82 402485 74,000/ Ext 115/C PSB Karol Bagh D87 C C No.29/10 196/250 197 086421 46,000/ Ext.45/F 402487 38,000/ Ext.45/E UCO Kamla Nagar 086425 65,000/ Ext 78/A 086427 47,000/ Ext 77/A1 086428 47,000/ Ext 77/A2 402490 65,000/ Ext 77/C UCO Sabzi Mandi 086422 38,000/ Ext PW 87/B1 402482 65,000/ Ext PW 87/B2 086424 74,000/ Ext PW 87/B3 402488 65,000/ Ext PW87/B5 402489 65,000/ Ext PW87/B6 086429 74,000/ Ext PW87/B7 Statement of A/c Ext PW 31/C D101/2 C C No.29/10 197/250 198 234 The eight cheques deposited with PSB Naraina Branch by A3 Vipin Kumar in A/c No.2475 are as follows:
Amount Cheque No. Issued to Issued by
(Rs) Branch
2,72,000/ 332507 A3 SBI Chandni
Chowk
1,19,000/ 778404 A3 SBI Shakurbasti
1,46,000/ 778411 A3 SBI Shakurbasti
1,91,000/ 332509 A3 SBI Chandni
Chowk
2,81,000/ 332502 A3 SBI Chandni
Chowk
1,91,000/ 332508 A3 SBI Chandni
Chowk
2,70,000/ 778412 A3 SBI Shakurbasti
38,000/ 778401 A3 SBI Shakurbasti
The 12 cheques deposited by A3 Raman Kumar with PSB Defence Colony in A/c No.1289 are as follows:
Amount Cheque No. Issued to Issued by
(Rs) Branch
2.81,675/ 332505 A3 SBI Chadni
Chowk
83,099/ 970857 A3 SBI Mayapuri
92,954/ 778403 A3 SBI Shakurbasti
C C No.29/10 198/250
199
2,90,000/ 332503 A3 SBI Chandni
Chowk
2,72,000/ 7784402 A3 SBI
Shakburbasti
2,90,000/ 9709853 A3 SBI Mayapuri
2,72,000/ 332506 A3 SBI Chandni
Chowk
1,81,000/ 778405 A3 SBI Shakurbasti
2,72,000/ 778406 A3 SBI Shakurbasti
1,64,000/ 970852 A3 SBI Mayapuri
1,82,000/ 970854 A3 SBI Mayapuri
2,54,000/ 332510 A3 SBI Chandni
Chowk
One cheque deposited by A3 to PSB Asaf Ali Road Branch in A/c No.2013 is as under:
Amount Cheque No. Issued to Issued by (Rs) Branch 74,000/ 402485 A3 SBI Nazafgarh
Two cheques deposited by A3 in PSB Karol Bagh are as follows: Amount Cheque No. Issued to Issued by (Rs) Branch 46,000/ 086421 A3 SBI Paharganj C C No.29/10 199/250 200 38,000/ 402487 A3 SBI Nazafgarh Four cheques deposited by A3 in UCO Bank Kamla Nagar in A/c No.19001 are as follows:
Amount Cheque No. Issued to Issued by (Rs) Branch 65,000/ 086425 A3 SBI Paharganj 47,000/ 086427 A3 SBI Paharganj 47,000/ 086428 A3 SBI Paharganj 65,000/ 4022490 A3 SBI Nazafgarh
Six cheques deposited by A3 in UCO Bank Subzi Mandi Branch in A/c No.3573 are as follows:
Amount Cheque No. Issued to Issued by (Rs) Branch 65,000/ 086422 A3 SBI Paharganj 74,000/ 402482 A3 SBI Nazafgarh 38,000/ 086424 A3 SBI Paharganj 65,000/ 402488 A3 SBI Nazafgarh 65,000/ 402489 A3 SBI Nazafgarh 74,000/ 086429 A3 SBI Paharganj 235 The prosecution has admitted that the aforesaid C C No.29/10 200/250 201
cheques have not been exhibited as those were withheld/removed by A1 Raman Kumar in course of their clearance in conspiracy with other accused person as he was the person negotiating with those cheques drawn upon branches of SBI at SBI Service Branch. The identity of aforesaid cheques have been fixed up by the prosecution with reference to outward cheques clearing register maintained in concerned branch of every brank and also with the help of pay in slips, which ever available, and seized by the I.O.
236 On the basis of cheques in question respective Branches of PSB and UCO bank were under obligation to allow such credits in the concerned account.
237 Whereas statement of account of five branches of SBI which had at the very beginning issued the cheques but were used subsequently for fraudulent withdrawal of the amount was too meager within three figures as under:
1. SBI Paharganj Rs.166.80 Paise
2. SBI Nazafgarh Rs.166.82 Paise
3. SBI Mayapuri Rs.496.00 Paise
4. SBI Shakurbasti Rs.511.00 Paise
5. SBI Chandi Chowk Rs.500.00 Paise C C No.29/10 201/250 202
238 Thus it is clear that cheques which owe their origin from 5 branches of SBI were used by A3 Vipin Kumar while there was no sufficient fund in the above five branches of SBI, yet cheques were issued by him (A3) proves the dishonest intention of A3. Such dishonest intention proves the conspiracy between A3 in connivance with A1 and A2.
239 Prosecution has established the identity of cheques with reference to Outward Clearing Registers which were removed in course of clearing with reference to pay in slips and cheques clearing register of the branches concerned where cheques in original were deposited for clearing, is as under:
S.No Cheque Bank Clearing Cheque
. No Register issued by
Exts
1 332507 PSB Naraina PW114/A SBI
D62 Chandni
Chowk
2. 778404 PSB Naraina PW114/A SBI
D62 Shakurbasti
3. 778411 PSB Naraina PW132/A do
D62
C C No.29/10 202/250
203
4. 332509 PSB Naraina SBI
D62 Chandni
Chowk
5. 332502 PSB Nariana Ext 53/1 do
D62 entire
register
page 32
6. 332508 PSB Naraina Ext PW do
D62 132/B
7. 778412 PSB Naraina PW SBI
D62 132/B Shakurbasti
Page 22
8. 778401 PSB Naraina PW132/C SBI
D62 Page 31 Shakurbasti
9. 332505 PSB Defence PW67(1) SBI
Colony D73 Page 10 Chandni
Chowk
10. 970857 PSB Defence PW67(1) SBI
Colony D73 Page 10 Mayapuri
11. 778403 PSB Defence Ext SBI
Colony D73 PW139/A Shakburbast
1 i
C C No.29/10 203/250
204
12. 332503 PSB Defence 35/G SBI
Colony Page 16 Chandni
D73(1) Chowk
13. 778402 PSB Defence Ext 35/L3 SBI
Colony D73 Page 26 Shakurbasti
14. 970853 PSB Defence Ext SBI
Colony D73 35/C1 Mayapuri
15. 332506 PSB Defence PW30/15 SBI
Colony Page 90 Chandni
D73(I) Chowk
16. 778405 PSB Defence PW35/C SBI
Colony Page 90 Shakurbasti
D73(I)
17. 778406 PSB Defence 35/G do
Colony D73
18. 970852 PSB Defence 35/G SBI
Colony D73 Mayapuri
19. 970854 PSB Defence 48/C do
Colony D73
Vol. II
20. 332510 PSB Defence 48/B Chandni
Colony D73 Chowk
Vol.II
C C No.29/10 204/250
205
21. 402485 PSB Asaf Ali 115/A Nazafgarh
Road D83
Page 13
22. 086421 PSB Karol 73/B Paharganj
Bagh D93
Pager 71(3)
23. 402487 do Page 73/A1 Nazafgarh
71(3)
24. 086425 UCO Kamla 73/A1 Paharganj
Nagar D93
Page 191
25. 086427 UCO Kamla 73/A1 do
Nagar D93
Page 191
26. 086428 UCO Kamla 79/A do
Nagar D99
Page 52
27. 402490 UCO Kamla 78/E Nazafgarh
Nagar D99
Page 37
28. 086422 UCO Subzi 31/F Paharganj
Mandi D107
Page 45
C C No.29/10 205/250
206
29. 402482 UCO Subzi 117/C Nazafgarh
Mandi D17
Page 60
30. 086424 UCO Subzi 117A to Paharganj
Mandi D107 C Nazafgarh
Page 65
31. 402488 UCO Subzi 83/A Nazafgarh
Mandi D107
Page 131
32. 402489 UCO Subzi 83/B do
Mandi D107
Page 73
33. 086429 UCO Subzi 117B Paharganj
Mandi D107
Page 95
240 The bank official have stated that the clearing cheques
were required to be accompanied with pay in slips. The accompanying payinslips have fraudulently written in the hands of accused A3 Vipin Kumar as stated by the handwriting expert. 241 A3 Vipin Kumar withdrew cash details of which is given as below:
C C No.29/10 206/250 207
1. PSB Naraina A/c No.2475 cheques, D60: total No. of cheques 8 Cheque Date Q No. Amount Exhibit No. No 746876 14.03.8 140/41 250000/ PW114/A1 4 746877 23.03.8 142/14 200000/ PW114/A2 4 3 746878 25.03.8 144/14 200000/ PW114/A3 4 5 746879 15.04.8 146/14 300000/ PW114/A4 4 7 746880 25.04.8 148/14 250000/ PW114/A5 4 9 746881 03.05.8 150/15 400000/ PW114/A6 4 1 746882 09.05.8 152/15 250000/ PW114/A7 4 3 746883 13.05.8 154/15 3011/ PW114/A8 4 5 C C No.29/10 207/250 208 1853011/
2. PSB Defence Colony, A/c No.1289 cheques, total No.of cheques 9:
Cheque Date Q No. Amount Exhibit No.
No
525501 13.03.8 116/11 300000/ PW 139/C1
4 7
525502 15.03.8 118/11 200000/ PW 48/F
4 9
525503 21.03.8 120/12 400000/ PW 139/C2
4 1
525504 12.04.8 122/12 350000/ PW 52/1
4 3
525505 23.04.8 124/12 460000/ PW 52/2
4 5
525506 25.04.8 126/12 175000/ PW 52/3
4 7
525507 30.04.8 128/12 300000/ PW139/C3
4 9
C C No.29/10 208/250
209
525508 07.05.8 130/13 450000/ PW 52/4
4 1
525509 12.05.8 132/13 719/ PW 52/5
4 3
2635719/
3. PSB Asaf Ali Road, A/c No.2013 Cheques, total No.of cheques 2 Cheque Date Q No. Amount Exhibit No. No 285252 02.11.8 161/16 4310/ PW 89/C 3 2 ?285331 26.09.8 163/16 70000/ PW 21/D 3 4 74310/
4. PSB Karol Bagh, A/c No.8342 cheques, D91: Total No. of cheques 4 C C No.29/10 209/250 210 Cheque Date Q No. Amount Exhibit No. No 471051 04.09.8 167/16 40000/ PW 45/G1 3 8 471053 35.09.8 171/17 35000/ PW 45/G2 3 2 471052 14.09.8 169/17 5000/ PW 45/G3 3 0 471054 02.11.8 173/17 4146/ PW 45/G4 3 4 84146/
5. UCO Kamla Nagar cheques, D98: total No. of cheques 10.
Cheque Date Q No. Amount Exhibit No No. 680501 13.10.8 181/182 35000/ PW 85/A 3 680502 20.10.8 183/184 20000/ PW 3 77/C1 C C No.29/10 210/250 211 680504 02.11.8 188/189 40000/ PW 3 77/C3 680503 09.11.8 185/186 15000/ PW 3 77/C2 680506 09.12.8 194/195 2000/ PW 3 77/C5 680505 190/191/19 30000/ PW 2 77/C4 680507 24.12.8 196/197/19 15000/ PW 3 8 77/C6 680508 28.12.8 198/199 50000/ PW 3 77/C7 680510 30.12.8 202/203 202.25/ PW 3 77/C9 680609 30.12.8 200/201 17000/ PW 3 77/C8
6. UCO Subzi Mandi cheques, D105: Total No. of cheques 11. C C No.29/10 211/250 212
Cheque Date Q No. Amount Exhibit No.
No
003981 05.09.8 207/20 60000/ PW 142/A1
3 8
003982 13.09.8 209/21 8000/ PW 87/C1
3 0
003983 14.09.8 211/21 40000/ PW 142/A2
3 2
003984 26.09.8 213/21 35000/ PW 87/A3
3 4
003985 13.10.8 215/21 35000/ PW 142/C2
3 6
003987 02.11.8 217/21 60000/ PW 142/A4
3 8
003986 24.11.8 219/22 7500/ PW 142/A5
3 0
003988 17.12.8 221/22 40000/ PW 142/A6
3 2
003989 21.12.8 223/22 20000/ PW 142/A7
3 4
003990 26.12.8 225/22 5000/ PW 87/C3
3 6
?015271 29.12.8 227/22 29606/88/ PW 87/E
3 8
C C No.29/10 212/250
213
310500
WHETHER DOCK IDENTIFICATION OF ACCUSED VIPIN KUMAR SHARMA IN THE COURT HAS NO EVIDENCIARY VALUE
242 Ld. Defence Counsel Sh. V N Ojha argued that in this case no test identification parade (TIP) of accused Vipin Kumar was conducted during the investigation of this case. Offence was allegedly committed round about the year 1983. Witnesses must have seen the accused for a moment at the time of alleged opening/introducing of bank account, hence they are not in a position to corrrectly identify accused Vipin Kumar Sharma in the court after lapse of about 15 to 20 years. In these circumstances the alleged dock identification of accused Vipin kumar Sharma in the court has no evidenciary value.
243 It is correct that no TIP of accused Vipin Kumar was got conducted by the investigating agency during the investigation of this case. In this case some witnesses, had introduced accused Vipin Kumar while opining his account in the bank. Some of the such witnesses are his known/friends while some of the witnesses C C No.29/10 213/250 214 are the friends of his friend but certainly they had seen him while opening the account in the bank. In their evidence in the court they have identified accused Vipin Kumar Sharma as the person to whom they had introduced in the bank at the time of opening of the concerned account in the bank, thus certainly they had seen him even prior to identifying him in the court. Thus, accused Vipin Kumar Sharma was known to them.
244 The failure of the investigating agency to hold a test identification parade does not, in that view, have the effect of weakening the evidence of identification in the court. As to what should be the weight attached to such an identification is a matter which the Court will determine in the peculiar facts and circumstances of each case. In appropriate cases the court may accept the evidence of identification in the Court even without insisting on corroboration.
245 Hon'ble Supreme Court in Malkhan Singh & Ors.
Vs.State of MP, AIR 2003 SC 2669 in this regard has held as follows:
"The identification parades belong to the stage of investigation and there is no provision in the Code of Criminal C C No.29/10 214/250 215 Procedure which obliges the investigating agency to hold, or confers a right upon the accused to claim a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code of Criminal Procedure. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact. In appropriate cases it court may accept the evidence of identification in the Court even without insisting on corroboration."
246 Similar view has been taken by Hon'ble Supreme Court in following authorities:
Kanta Prashad Vs. Delhi Administration AIR 1958, SC 350, Vaikuntam Chandrappa Vs. State of A.P. AIR 1960 SC 1340, Budh Sen Vs, State of UP (1070) 2 SCC128, (AIR 1970 SC 1321) and Rameshwar Singh Vs. J & K (1971) 2 SCC 715 (AIR 1972 SC 102).
247 Hon'ble Supreme Court in Parmod Mandal Vs. State of Bihar (2004) 13 SCC 150 has held as follows:
"It is neither possible nor prudent to lay down any invariable rule as to the period within which a test identification parade must C C No.29/10 215/250 216 be held, or the number of witnesses who must correctly identify the accused, to sustain his conviction. These matters must be left to the courts of fact to decide in the facts and circumstances of each case. If a rule is laid down prescribing the period within which the test identification parade must be held, it would only benefit the professional criminals in whose cases the arrest are delayed as the police have no clear clue about their identity, they being person unknown to the victims. They, therefore, have only to avoid their arrest for the prescribed period to avoid conviction. Similarly, there may be offences which by their very nature may be witnessed by a single witness, such as rape. The offender may be unknown to the victim and the case depends solely on the identification by the victim, who is otherwise found to be truthful and reliable. What justification can be pleaded to contend that such cases must necessarily result in acquittal because of there being only one identifying witness? Prudence therefore, demands that these matters must be left to the wisdom of the courts of fact which must considered all aspects of the matter in the light of the evidence on record before pronouncing upon the acceptability or rejection of such identification."
C C No.29/10 216/250 217
248 In this regard Hon'ble Supreme Court in a latest authority Umesh Singh Vs. State of Jharkhand, AIR 2011 Supreme Court SC 1403 has held as follows:
"Evidence Act (1 of 1872), S.9 - Test Identification Parade - Failure to hold - Does not have effect of weakening evidence of identification in Court - As to what should be the weight attached to such an identification is a matter which Court will determine in peculiar facts and circumstances of each case - Version of two eye witnesses that it was accused who had shot deceased - However, only one of witnesses associated with TIP in which he identified accused - Failure of prosecution to offer an explanation for not holding TIP for other witness - Will not ipso jure prove fatal to case of prosecution.(Paras 37, 40)."
249 In view of above discussion it is clear that identification of the accused in the court certainly have evidenciary value according to the facts and circumstances of each case. In our case as discussed above witnesses were not totally unknown to accused Vipin Kumar. They had seen the accused Vipin kumar Sharma at the time of introducing his account in bank. Some of the witnesses were either his friend or the friends of his friends. As C C No.29/10 217/250 218 quopted above witnesses in their examinatioin in chief have specifically identified accused Vipin Kumar Sharma as the person who had opened the account and was introduced by them. All these witnesses in their cross examination on behalf of accused have denied the suggestion given to them that they cannot identify accused Vipin Kumar Sharma which reaffirms the version given by such witnesses in their examinatioin in chief. In view of above discussion there is no merit in this argument of Ld. Defence Counsel.
250 It is argued on behalf of accused K.B.Mehta that he has innocently introduced opening of A/c No. 3/47300 in the name of M/s Vishal Plastic Enterprise by Shri V.Inderpal as its proprietor in SBI Chandni Chowk branch. There was no operation/transaction in this account after it was opened on 5.3.84. This account remained inoperative for about one year. Thereafter this account was transferred to inoperative accounts on 23.12.85 as there was no transaction in this account. No amount was withdrawn from this account. There is no evidence on the file that accused K B Mehta has received any monetary benefit qua this account. It is argued that C C No.29/10 218/250 219 in these circumstances introduction of opening of account is no offence.
251 Account no. 3/47300 was opened on 5.3.84 in the name of M/s Vishal Plastic Enterprises through V Inder Pal, 5014/1 Ballimaran, Delhi6. This account was introduced by K B Mehta, proprietor of Kay & Bee & Company , 373/B, Katra Naya, Chandni Chowk, Delhi. Account Opening Form of the same is Ex PW51/1. Handwriting Expert has opined that handwriting at point Q 284 is of accused K.B.Mehta. Specimen Signature Card of this account is Ex PW51/4 having signatures of V Inder Pal, stamp of Vishal Plastic Enterprise at point Q 241 and Q109. Statement of account of this account is Ex PW51/6. Cheque Book Issue Register is Ex.PW 51/3 qua which cheque book bearing cheque leaflet nos. 332501 to 332600 were issued to the proprietor V Inder of M/s vishal Plastic Enterprise. who had signed at point Q111 in token of receiving of cheque book.
252 According to prosecution accused Vipin Kumar Sharma opened S.B. Account no. 3/47300 on 5.3.84 with SBI, Chandni Chowk Branch, in the fictitious name & address M/s Vishal Plastic Enterprises showing himself as proprietor as V C C No.29/10 219/250 220 Inderpal, r/o 5014/1, Balli Maran, Delhi & this account form was introduced by Sh. K B Mehta . Account holder obtained cheque book No. 332501 to 332600 on 5.3.84 . In this regard relevant portion of statement of PW51 Sh. D N Utreja is as under:
"An account in the name of M/s Vishal Plastic Enterprises was opened and the said account was authorised by me. The account was introduced and its introduction was verified by Mr. Gogia who as an officer at SBI, Chandni Chowk Branch,whose signature I know. Account Opening Form is marked Ex PW 51/1. When an account is opened cash is deposited to open the account and accordingly a cash of R.500/ was deposited in this account in cash. This is the pay in slip maintained in ordinary course of banking business. This pay in slip also bears my initial besides the initial on the Account Opening Form. The pay in slip is marked Ex PW 51/2. When an account ha opened cheques are issued to the customer. Cheque books are issued after entering the same in the cheque book register which is maintained in ordinary course of banking business. Such entries are made by the accountant of the branch. The customer enter acknowledges the receipt of cheque book. This is that part of the cheque book register which contained C C No.29/10 220/250 221 the entry regarding issue of cheque book No. 332501 to 332600 in favour of Vishal Plastic Enterprises on 5.3.84 under initial of the then accountant. His initial I know. It also bears signature of the account holder acknowledging the cheque. The entry is marked Ex PW 51/3. (Objected to).
253 The bank maintained statement signature card relating to the signature of the customer who opens an account. This is the specimen signature card of M/s Vishal Plastic Enterprises which has been signed by the person opening the account and his signature was verified by me. The same is marked Ex PW 51/4. A ledger sheet is also maintained in the bank in the ordinary course of banking business. This is the ledger sheet in respect of the above account which bears my initial. Ledger sheet is marked Ex PW 51/5. There is no operation transaction of the account after it was opened on 5.3.84."
254 According to PW125 Shri S C Mittal, Handwriting Expert signatures/writings at point Q240 on Ex PW 51/1 which is the Account opening form of SB account No. 31/47300 in the name of M/S Vishal Plastic Enterprises opened in the assumed name V Inderpal as its Proprietor and at point Q241 on Ex C C No.29/10 221/250 222 PW51/4 which is the specimen signature card of M/S Vishal Plastic Enterprises having the specimen signatures of the person who had opened the account and at point Q242 on Ex PW51/2 which is the payinslip vide which initial amount was deposited at the time of opening of this account is of accused Vipin Kumar Sharma . Thus it corroborates the version of prosecution that accused Vipin Kumar had opened the above said account as V Inder Pal.
255 Accused K B Mehta has admitted his signature/writing with regard to this account in his statement U/s 313 Cr PC, he has categorically admitted that he introduced Vipin Kumar for opening of this account as he knew him.
256 A specific question bearing Question No.3 has been put to accused K B Mehta in his statement U/s 313 Cr PC which is as under:
"Q3 It is also in his evidence PW51 Shri D.N. Utreja, SBI Chandni Chowk that cheques bearing Ext. PW51/3 (D40 Q111) were issued in favour of M/s Vishal Plastics Enterprise bearing signature of the A/c holder Ext. PW51/3 (D40 Q111) on the cheque book issue register. The A/c PW51/6 (D38) is available C C No.29/10 222/250 223 balance of Rs. 480/ PW51/7 (D37) is instruction sheet of the account. The account became ineffective w.e.f. 23.12.85 the account was shown opened by one Inder Pal and introduced by Kay Bee & Company by you accused K.B. Mehta Ext. P12(Ext. 51/1 Q 84). Ledger Sheet bearing Ext. PW51/5 bears no operation of the account after it was opened on 5.3.04. What have you to say?
257 To the above question accused K B Mehta has given following reply:
Ans: I do not know about the transaction in the account of M/S Vishal Plastic . However, Raman Kumar was residing in my neighbourhood and Vipin was introduced to me by him as his friend. The introduction of the account was made on the form as some account was to be opened in Chandni Chowk Branch of SBI where I had an account. The introduction was made by me innocently."
258 From the above answer given by accused K B Mehta it is clear that accused Raman Kumar introduced him with accused Vipin Kumar as his friend, thus K B Mehta had introduced the account opened in the name of Vishal Plastic Enterprises by accused Vipin Kumar as V Inderpal. It is also clear that he was the C C No.29/10 223/250 224 accused Vipin Kumar who had opened the above said account as V Inderpal.
259 Cheques bearing No.332501 to 3325600 were issued by SBI Chandni Chowk to A3 Vipin Kumar in the assumed name of V Inder Pal qua this account. Out of these cheques four cheques were deposited at PSB Naraina and four cheques were deposited at PSB Defence Colony by A3. These cheques are 332507 for Rs. 2,72,000/ deposited vide pay in slip Ex.PW.114/G1, 332509 for Rs.191,000/deposited vide pay in slip Ex.PW.114/G7, 332502 for Rs.2,81,000/deposited vide pay in slip Ex.PW.114/G5, 332508 for Rs.1,91,000/ deposited vide pay in slip Ex.PW.114/G7 at PSB Naraina whereas following cheques were deposited at PSB Defence Colony by A3: 260 Cheques No. 332505 for Rs.2,81,675/ deposited vide pay in slip Ex.PW 139/A3, 332503 for Rs.2,90,000/deposited vide pay in slip Ex.PW 35/A7, 332506 for Rs.2,72,000/deposited vide pay in slip Ex.PW 35/A4, 332510 for Rs.2,54,000/deposited vide pay in slip Ex.PW 48/E. Details of these cheques are mentioned in Outward Clearing Register D62 and D73.
261 In this way accused Vipin Kumar, on the basis of C C No.29/10 224/250 225 cheques received by him from SBI Chandni Chowk Branch qua the above said branch had withdrawn Rs.19,30,000/. Had the account not been introduced by A4 Sh. K B Mehta there was no scope for A3 Vipin Kumar to fraudulently withdraw a sum of Rs.19,30,000/ on the basis of aforesaid eight cheques issued from this account.
262 It is forcefully argued on behalf of accused K B Mehta that introducing a person for opening a bank account in itself is no offence. Accused K B Mehta had innocently introduced accused Vipin Kumar as V Inderpal on the request of his friend Raman Kumar.
263 Introducing a correct person for opening a bank account is certainly no offence but introducing accused Vipin Kumar as V. Inderpal is certainly a criminal offence.
" Good Faith" is defined U/S 52 of IPC . According to Section 52 of IPC, nothing is said to be done or believed in "good faith" which is done or believed without due care and attention.
264 Hon'ble High Court of Orissa in Pagal Baba Vs. State,AIR 1957, Orissa 130 has held as follows:
"Act on the contrary to law and without jurisdiction" and C C No.29/10 225/250 226 "acting in a way not strictly justifiable by law" Good faith in criminal law and in civil law.
265 There is a distinction between acting contrary to law and without jurisdiction and acting in a way not strictly justifiable by law. Good faith in criminal law is different from good faith as understood in civil law, If an act is not done with due care and attention it cannot be said to be done in good faith as far as criminal law is concerned."
266 With regard to plea of accused that he had introduced accused Vipin Kumar as V Inderpal and signed the account opening form as introduer innocently, Hon'ble Supreme Court in Soma Chakravorty Vs. State Through CBI has held as follows:
"Penal Code, 1860 Ss. 420, 468 and 471 r/w S. 120B - Fraud and misappropriation of Govt. money - Accused alleged to have dishonestly processed and verified fake bills - Plea of accused that she signed the said bills in normal course of her duty and it was account section which was negligent in not verifying those bill - sustainability of - Held, the said plea was not tenable as when a person sign on a document he or she is expected to make some C C No.29/10 226/250 227 enquiry before signing it - Criminal Procedure Code, 1973, S.228."
267 Hon'ble Supreme Court with regard to good faith in State of Orissa Vs. Bhagaban Barik, AIR 1987 Supreme Court 1265 has held as follows:
"Penal Code (45 of 1860), S.79, S.52, S.304, Part II, S. 100 Mistake of fact - Good faith - Requires due care and attention and not logical infallibility Relations between deceased and accused strained - Deceasedgoing to pond to collect his utensil - Given lathi blow by accused under alleged belief that he was striking a thief - Held, there was no occasion for accused to believe that he was striking a thief Accused not entitled to benefit of S. 79, convicted under Sec. 304, part II."
268 In this regard Hon'ble Supreme Court in Re: S K Sundram AIR 2001 Supreme Court 2374, has held as follows:
" Before a person proposes to make an imputation on another, the author must first make an enquiry into the factum of the imputation which he proposes to make. It is not enough tha he does just make a believe show for an enquiry. They enquiry expected of him is of such a depth as a reasonable and prudent man would make with the genuine intention in knowing the real truth of the C C No.29/10 227/250 228 imputation which is up in his sleeves. If he does not do so he cannot claim that what he did was bonafide i e done in good faith." In view of the above discussion there is no merit in this argument.
269 Burden of proving good faith always rests upon the accused. In this case accused K B Mehta has not prodeuced any evidence to establish his defence of good faith even by mere prudence of probability as to how on which basis he had introduced accused Vipin Kumar as V Inderpal for opening the above said account.
270 In view of above discussion there is no merit in this argument of accused that he had innocently introduced accused Vipin Kumar as V Inderpal for opening the above said account. 271 It is correct that there is no evidence on judicial file that accused K B Mehta has received any monetory benefit from any of his coaccused for opening the above said account but there is specific evidence as discussed above that qua the cheques received by accused Vipin Kr from the above said account he had dishonestly and fradulently withrawan an amount of Rs.19,30,000/ thus he has facilitated his coaccused Vipin Kumar in causing of above said loss to the bank.
C C No.29/10 228/250 229 272 It is correct that investigating agency has not charge sheeted other persons who had introduced accused Vipin Kumar in different names.
273 Ld. Defence counsel placing reliance on State of MP Vs. Sheetla Sahai 2009 (4) CCC (SC) 220 argued that other persons who had introduced accused Vipin Kumar Sharma to open accounts in bank in similar circumstances have not been charge sheeted in this case, hence on the basis of parity accused K B Mehta should not be charge sheeted in this case. As he has been illegally charge sheeted, hence he may be acquitted.
274 There is substantive evidence on the file that accused K B Mehta at the instance of accused Raman Kumar, who was his friend had introduced accused Vipin Kumar Sharma as V Inderpal while opening the above said account in SBI, Chandni Chowk Branch. It is also in evidence that accused Vipin Kumar Sharma has given his wrong address 5014/1 Ballimaran in the introduction form. Introducing Vipin Kumar Sharma as V Inderpal is certainly a criminal offence .
275 Defence cannot take advantage of bad investigation where there is evidence available on the record against the C C No.29/10 229/250 230 accused. In this regard our Hon'ble Supreme Court in a latest judgment titled Zindar Ali Vs. State of West Bengal & Anr., 2009 III AD (S C ) 7 held as follows:
"Indian Penal Code, 1860 Secs. 376 and 417 - Immediate disclosure of rape by the prosecutrix - Version of prosecutrix unchallenged - Admission by the accused in village panchayat - Medical evidence also another proof - Accused behind bar for five years - SC held - Defence cannot take advantage of bad investigation where there is clinching evidence available to the Prosecution."
276 Hon'ble Supreme Court in Rohtash Vs. State of Rajasthan (2007) 2 SCC (Crl.) 382 has held that that defective investigation would not lead to total rejection of prosecution case. 277 Hon'ble Supreme Court in State of MP Vs Man Singh ( 2007) 2 SCC 390 in this regard has held as follows:
" Criminal Trial Investigation Deficiencies in investigation Effect Held, cannot be a ground to discard the prosecution version which is authentic, credible and cogent Criminal Procedure Code, 1973 S.157."
C C No.29/10 230/250 231
278 In Karnail Singh Vs. State of MP 1995 SCC 977it has been held by Hon'ble Supreme Court that in case of defective investigation it would not be proper to acquit the accused if the case is otherwise established conclusively because in that event it would tantamount to be falling in the hands of an erring Investigating Officer.
279 Considering the case from all the angles there is no merit in this argument of Ld. Defence counsel. 280 Ld. Defence Counsel on behalf of all the accused argued that in a case of criminal conspiracy agreement to do an illegal act or ot commit a crime is the most important ingrediant. In this case prosecution has failed to prove that there was any agreement or meeting of mind among the accused to do any illegal act or to commit the crime. Ld. Defence Counsel for A1 and A2 in this regard placed reliance on following authorities:
Ravi Chandran vs. State by Dy. Superintendent of Police, Madras, (2011) 1 Supreme Court Cases (Crl.) 137, S Arul Raja Vs. State of Tamil Nadu, (2010) 3 Supreme Court Cases (Crl.) 801, P K C C No.29/10 231/250 232 Narayanan Vs. State of Kerala (1995) 1 Supreme Court Cases 142, A. Jayaram & another Vs. State of Andhra Pradesh, AIR1995 Supreme Court 2128.
281 Ld. Defence Counsel for accused K B Mehta has placed reliance on Ms. Shreya Jha Vs. CBI 2008 (1) CCC (HC) 346. 282 Ld. Defence Counsel for A1 and A2 argued that in this case according to prosecution seven accused were involved in the alleged criminal conspiracy to cheat the bank, however, predecessor of this court at the time of framing of charge had discharged accused Smt. Raj Rani, Santosh Sharma and Madan Kumar thus, disbelieved the concocted story of prosecution about the alleged criminal conspiray. It is correct that my Ld. Predecessor had discharged accused Smt. Raj Rani, Santosh Sharma and Madan Kumar vide order dt. 27.7.95 on the ground that there was not enough evidence to frame charge against them. My Ld. Predecessor has nowhere opined in his order dt. 27.7.95 that story of prosecution is concocted or false. My Ld. Predecessor vide the same order directed to frame charge against all the present accused facing this trial now considering therein that there is sufficient evidence against them and that order on charge has not been set aside till C C No.29/10 232/250 233 date. In these circumstances there is no merit in this argument. 283 Conspiracy consists in a combination or agreement between two or more person to do an unlawful act or to do a lawful act by unlawful means. A conspiracy is an inference drawn from the circumstances. There cannot always be much direct evidence about it. Conspiracy can be inferred even from the circumstances giving rise to a conclusive or irresistible inference of an agreement between two or more persons to commit an offence. Since Conspiracy is often hatched up in utmost secrecy, it is most impossible to prove conspiracy by direct evidence. It has to be inferred from the acts, statements and conduct of parties to the conspiracy. Thus, if it is proved that the accused pursued, by their acts, the same object often by the same means, one performing one part of the act and the other another part of the same act so as to complete it with a view to attainment of the object which they were pursuing, the court is at liberty to draw the inference that they conspired together to effect that object. Conspiracy has to be treated as a continuing offence and whosoever is a party to the conspiracy, during the period for which he is charged, is liable under this section.
C C No.29/10 233/250 234 284 Though to establish the charge of conspiracy there must be agreement, there need not be proof of direct meeting or combination , nor need the parties be brought into each other's presence; the agreement may be inferred from the circumstances raising presumption of a common concerted plan to carry out the unlawful design. Conspiracy need not be established by proof which actually brings the party together; but may be shown like any other fact, by circumstantial evidence. So again it is not necessary that all should have joined in the scheme from the first point; those who come in at a later stage are equally guilty.
285 It is not an ingredient of the offence under this section that all the parties should agree to do a single illegal act. It may comprise the commission of a number of acts. The entire agreement must be viewed as a whole and it has to be ascertain as to what in fact the conspirators intended to do or the object they want to achieve. It is not necessary that each member of conspiracy must know each other or all the details of the conspiracy. It is also not necessary that every conspirator must have taken place C C No.29/10 234/250 235 in each and every act done in pursuance of a conspiracy. 286 Conspiracy hatched in secrecy and executed in darkness. In a case of conspiracy, it is not expected from the prosecution that it will produce evidence to show that conspirators executed agreement to commit crime before the witnesses to prove the existence of conspiracy. Conspirators take all precautions to keep their plan secret hence prosecution cannot produce direct evidence to prove agreement to commit conspiracy. 287 In Kher Singh Vs State AIR 1988 SC 1883 it is observed as follows:
" Generally, a conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same. The prosecution will often rely on th evidence of acts of various parties to infer that they were done in reference to their common intention. The prosecution will also more often rely upon the circumstantial evidence. The conspiracy can be undoubtedly proved by such evidence direct or circumstantial. But the Court must require whether the two persons are independently pursuing the same end or they have come together to the pursuit of the unlawful object. C C No.29/10 235/250 236 The former does not render them conspirators, but the later does. It is however, essential that the offence of conspiracy required some kind of physical manifestation or agreement the express agreement however need not be proved. Nor mutual meetings of the two persons is necessary. Nor it is necessary to prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design may be sufficient. Conspiracy can be proved by circumstances and other material."
288 In a case of criminal conspiracy any evidence available against any of the accused is admissible against all the accused. Once a conspiracy is proved among the accused, act of one conspirator become act of all other conspirators also. In this regard Ld. SPP placed reliance on Shiv Narain Laxmi Narain Joshi Vs State of Maharashtra, (1980 ) 2 Supreme Court Cases 465 has held as follows:
" Penal Code, 1860 Section 120B - Since it is impossible to adduce direct evidence of conspiracy, the offence can only be proved largely from the inference drawn from acts or illegal omissions committed by the conspirators in pursuance of a common design Once such a conspiracy is proved, act of one C C No.29/10 236/250 237 conspirator becomes act of the other A coconspirator, who joins subsequently and commits overt acts in furtherance of the conspiracy, held is also liable Evidence Act, 1987 Section 10."
289 Hon'ble Supreme Court in Firozuddin Basheeruddin & Ors. Vs. State of Kerala, (2001) 7 Supreme Court Cases 596 has held as follows:
"Conspiracy is not only a substantive crime but on the basis of it a conspirator can also be held liable for the crimes committed by conspirators in furtherance of the objectives of the conspiracy Conspiracy can be established on the basis circumstances evidence As regards admissibility of evidence strict standards are not necessary inasmuch as any declaration made by a conspirator in furtherance of and during pendency of a conspiracy though hearsay, is admissible against each co conspirator On facts held, Supreme Court's interference with concurrent finding that criminal conspiracy proved and on the basis offence of murder also made out not called for."
290 Hon'ble Supreme Court in Ram Naryan Popli Vs. CBI C C No.29/10 237/250 238 AIR 2003, SC 2748 has held as follows:
"The essential ingredient of the offence of criminal conspiracy is the agreement to commit an offence. In a case where the agreement is for accomplishment of an act which by itself constitutes an offence, then in that event no overt act is necessary to be proved by the prosecution because in such a situation, criminal conspiracy is established by proving such an agreement. Where the conspiracy alleged is with regard to commission of a serious crime of the nature as contemplated in Section 120B read with the proviso to sub Section (2) of Section 120A, then in that event mere proof of an agreement between the accused for commission of such a crime alone is enough to bring about a conviction under Section 120B and the proof of any overt act by the accused or by any one of them would not be necessary."
291 Hon'ble Supreme Court in P K Narayan Vs. State of Kerala, All India Criminal Law Reporter 1994 (3) 785, has held as follows:
"Penal Code, 1860, Section 120B Evidence Act, 1872, Section 3 - Criminal Conspiracy Essence of Criminal conspiracy - It is an agreement to do an illegal act - Agreement can be proved C C No.29/10 238/250 239 either by direct evidence or by circumstantial evidence or by both - Complicity of the accused - Circumstances proved before, during and after the occurrence required to be considered to decide about the complicity of the accused But if the circumstances are compatible with the innocence of the accused persons then it could not be held that the prosecution had successfully established its case."
292 Hon'ble Supreme Court in S. Swamirathnam, Appellant Vs. State of Madras, Respondent, (s) AIR 1957 S.C. 340 in this regard has held as follows:
"If a specific instance of cheating was proved beyond doubt against any of the accused that would furnish the best corroboration of the offence of conspiracy because conspiracy was the root and the specific instances were the fruit."
293 Agreement to do an illegal act can be proved either by direct evidence or by substantial evidence. Circumstances proved before, during and after the occurrence is to be considered to decide about the complicity of the accused in the criminal conspiracy. In this case meeting of mind between the accused can be inferred from the circumstances raising presumption of a common C C No.29/10 239/250 240 concerted plan to carry out the unlawful design to commit the criminal conspiracy.
294 From the evidence produced by the prosecution it is proved beyond reasonable doubt in this case that accused Raman Kumar and accused Chaman Kumar are real brothers. Accused Raman Kumar was serving in service Branch, SBI, Parliament Street. He was having access to the cheques presented in various banks drawn on various branches of SBI. It is also well proved beyond reasonable doubt on the file that accused Vipin Kumar is a close friend of accused Raman Kumar. There is abundance of evidence on the file that accused Raman Kumar through his friends got introduced accused Vipin Kumar for opening accounts in various branches of banks in different names. It is also proved on the judicial file that amount of the cheques in question which were obtained by accused Vipin Kumar and accused Chaman Kumar as Ashok Kumar credited in the account of accused Raman Kumar . It is also proved beyond reasonable doubt on the file that amount of cheques in dispute obtained by accused Vipin Kumar credited in the account of accused Chaman Kumar. It is also proved on the file beyond reasonable doubts that all these three accused were having C C No.29/10 240/250 241 meager amount in three figures only at the time when they had issued cheques in lakhs. It is proved beyond reasonable doubts on the file that accused Vipin Kumar had opened as many as 11 accounts in SBI, Punjab & Sind Bank and UCO bank in different names. Had he being a genuine person what was the need of oepning of several accounts in different branches in different names. It is also proved on the judicial file that accused K B Mehta has introduced accused Vipin Kumar as V Inderpal at the instance of accused Raman Kumar while opeining the account of M/s Vishal Plastic Enterprises in SBI, Chandni Chowk Branch which has also been admitted by accused K B Mehta that he had introduced accused Vipin Kumar as V Inder pal in the SBI, Chandni Chowk Branch for opening the account as V Inder Pal innocently. All these facts prove that all these accused had committed this crime in connivance with each other to achieve the common object of their criminal conspiracy.
295 It is argued by Ld. Defence Counsels that evidence of prosecution is full of contradictions hence cannot be relied upon. There are some contradictions in the statement of witnesses. In this case crime was committed in the year 1983. Statement of witnesses C C No.29/10 241/250 242 has been recorded till 2007 i.e. after several years of commission of crime. In such circumstances contradictions are bound to appear in the statement of witnesses. What the court has to see in such circumstances to evaluate the evidence of a witness, is the ring of truth. If there appears a ring of truth in the statement of witness it is to be believed. In this case statement of witnesses is duly corroborated by documents and circumstances also. 296 The law regarding contradiction was considered by the Hon'ble Supreme Court in case of Bharuda Broginbhai Harjibhai V/S State of Gujrat AIR 1983 SC 753 where in it was held that discrepancies which do not go to the root of the matter and shake the basic version of the prosecution should not be attached undue importance. Their Lordships have enumerated following reasons for arriving of this conclusion:
i) " By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.\
ii) Ordinarily, it is so happen that a witness is over taken C C No.29/10 242/250 243 by events the witness could not have anticipated the occurrence which so often has an element of surprise.
Thus mental faculties, therefore, cannot be expected to be attuned to absorb the details.
iii) The powers of observance differ from person to person, but one may noticed another may not. An object or movement might emboss image on one person's mind, whereas it might go unnoticed on the part of another.
iv)By and large people cannot accurately recall a conversation and reproduced the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
v) In regard to exact time of an incident or the time duration of an occurrence, usually, people make their estimate by guess work as spare of moment, at the time of interrogation and one cannot expect people make very precise or reliable estimate in such matter. Again it depends upon the time sense of individuals which C C No.29/10 243/250 244 varies from person to person.
vi) Ordinarily, a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession of in a short time span. A witness is liable to get confuse or mixed up when interrogated later on.
vii) A witness though wholly truthful, is liable to be overawed by the Court atmosphere and the piercing cross examination made by counsel and out of nervousness mixed up facts, get confused regarding sequence of events., or fill up details of imagination at the spur of moment. The sub conscious mind of the witness sometime so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and an honest account of the occurrence witnessed by him perhaps it is a sort of physiological movement".
297 In view of the law discussed above it cannot be said that the contradiction pointed out by Ld. Counsel for accused are C C No.29/10 244/250 245 very vital contradictions. These are contradiction which are likely to occur with the passage of time. The Hon'ble Supreme Court in case State of UP V/S M.K. Anthony, AIR 1985 SC 48 has laid down the principle for appreciating the evidence of a witness as under:
" While appreciating the evidence of a witness the approach must be whether the evidence of the witness read as a whole, appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, draw backs and infirmities, pointed out in the evidence as a whole and evaluate them to find out whether, it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render if unworthy of belief. Minor discrepancies of trivial matter, not touching the core of the case, hypertechnical approach by taking sentence torn out of context here and there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter, would not ordinarily permit C C No.29/10 245/250 246 rejection of evidence as a whole."
" Their Lordships further observed:
" Unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations of infirmities in the manner of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention, and reproduction differ with individuals. Cross examination is an unequal dual between the rustic and refined lawyer."
298 Ld Defence counsel for A1 and A2 argued that prosecution has to prove its case beyond reasonable doubts. In support of his arguments he has placed reliance on Kali Ram Vs. State of Himachal Pradesh, (1973) 2 Supreme Court Cases 808. There is no dispute with this proposition of law laid down in this authority. From the above discussion it is also clear that prosecution has proved its case beyond reasonable doubts. 299 Hon'ble Supreme Court in Inder Singh Vs State ( Delhi Administration) AIR 1978 Supreme Court 1091 has held as C C No.29/10 246/250 247 follows:
" Proof beyond reasonable doubt is a guideline, not a fetish and guilty man cannot get away with it because truth suffers some infirmity when projected through human processes. Judicial quest for perfect proof often accounts for police presentation of foolproof concoction. Why fake up? Because the Court asks for manufacture to make truth look true? No, we must be realistic."
300 Our Hon'ble Supreme Court in State of U.P Vs Anil Singh has observed as follows:
" It is necessary to remember that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also preside to see that a guilty man does not escape. One is as important as the other. But are public duties which the judge has to perform.
301 In the case of State of W.B. Vs Orilal Jaswal it was held that justice cannot be made sterile on the plea that it is better to let a hundred guilty escape than punish an innocent. Letting the guilty escape is not doing justice, according to law . 302 In the case of Mohan Singh Vs State of M.P it was held that Courts have been removing chaff from the grain. It has to C C No.29/10 247/250 248 disperse the suspicious cloud and dust out the smear of dust as all these things clog the very truth. So long chaff, cloud and dust remain, the criminals are clothed with the protective layer to receive the benefit of doubt. So it is a solemn duty of the Courts, not to merely conclude and leave the case the moment suspicious are created. It is the onerous duty of the Court, within permissible limit to find out the truth . It means, on one hand no innocent man should be punished but on the other hand to see no person committing an offence should be get scotfree. If in spite of such effort suspicion is not dissolved, it remains writ at large, benefit of doubt has to be credited to the accused.
303 Prevention of Corruption Act is a social legislation enacted with the object to curb illegal activities of public servants, in these circumstances according to the law of interpretation of Statute, its provision should be interpreted so as to achieve its object. Our Hon'ble Supreme Court in Ram Singh Vs. State of MP (2000) 5 Supreme Court Cases88 has held as follows:
"Prevention of Corruption Act, 1988 - Nature and interpretation of Held is a social legislation to curb illegal activities of public servant and should be liberally construed so as to advance C C No.29/10 248/250 249 its object and not liberally in favour of the accused - interpretation of Statutes Particular statutes or provisions - Penal statute - Social Legislation - Interpretation of".
304 Hon'ble Supreme Court in State of Punjab Vs. Pohla Singh, 2003 (3) CCC 75 has held as follows:
"Appreciation of evidence - The prosecution is not supposed to meet every hypothetical question raised by the defence If crime is to be punished in a glosseme way niceities must yield to realistic appraisal."
305 In view of above discussion it is proved beyond reasonable doubt from the evidence produced by the prosecution that accused Raman Kumar , who was working as clerk in service Branch of SBI, Parliament Street, as a public servant, abused his official position, in connivance and conspiracy, of his coaccused Chaman Kumar, Vipin Kumar Sharma and K B Mehta obtained pecuniary advantage/wrongful gain of Rs.1,35,000/ for himself and of Rs.4,32,000/ for his brother Chaman Kumar and of Rs. 53,49,778/ for his friend Vipin Kumar Sharma by illegally removing/destroying 41 cheques and thereby caused a total C C No.29/10 249/250 250 wrongful loss of Rs.58,16,728/ to the bank concerned. Therefore accused Raman Kumar is convicted for the offences punishable U/s 120B r/w Sec. 420 IPC & U/s 5 (2) r/w Sec. 5 (1) (d) of P C Act, 1947 & for committing substantive offence punishable U/s 167 & 420 IPC .
306 In view of above discussion accused Chaman Kumar , accused Vipin Kumar and accused K B Mehta are also convicted for the commission of offence punishable u/s 120 B r/w Sec. 420 IPC and for the commission of substantive offence punishable U/s 420 IPC.
307. Ordered accordingly.
Announced in open court ( V. K. Maheshwari) RD ON 3 DAY OF JUNE, 2011 SPECIAL JUDGE: (P C ACT) 03 CBI: DELHI C C No.29/10 250/250 251 IN THE COURT OF V .K .MAHESHWARI SPECIAL JUDGE: (P C Act)03 CBI DELHI Corruption Case No.29/10 CB I Vs. 1 Raman Kumar s/o Radhey Lal, Clerk cumCashier, (under suspension), State Bank of India, Service Branch, Parliament Street, New Delhi.
2 Sh. Chaman Kumar s/o Sh.
Radhey Lal, r/o A10, Derawala Nagar, Delhi 3 Vipin Kumar Sharma s/o Sh.
Dwarka Nath Sharma, r/o 9A Sanjay Nagar, Delhi 33 4 Sh. K B Mehta s/o Late Sh. R C Mehta, r/o 1/42 Model Town, Delhi ORDER ON SENTENCE:
Vide my separate detailed judgment dated 3.6.2011 I convicted accused Raman Kumar for the offences punishable U/s 120B r/w Sec. 420 IPC & 167 IPC and U/s 5 (2) r/w Sec. 5 (1) (d) of P C Act, 1947 & for committing substantive offence punishable U/s 167 & 420 IPC & U/S 5 (2) r/w 5 (1) (d) of P C Act 1947. I C C No.29/10 251/250 252 also convicted accused Chaman Kumar, accused Vipin Kumar and accused K B Mehta for the commission of offence punishable u/s 120 B r/w Sec. 420 IPC and for the commission of substantive offence punishable U/s 420 IPC.
2 Arguments on sentence heard.
3 It is argued on behalf of convict Raman Kumar that he had hardly served three years in service when he lost his job with the stigma of cheating which completely ruined his family life. Till date he could not find out any job in the market and had to rely upon petty tuitions. He has lost his prime 25 years of youth and has now turned patient of various serious diseases of bones besides severe diabetes, hypertension, bronchitis, palmoplantar psoriasis and other illness related to it. Due to loss of his job he could not provide the quality education to his three most outstanding children. 4 He has three children, eldest being a daughter of marriageable age of 2324 years who after completing her Economics (Hons.) pursuing the MBA at present. Next child is a C C No.29/10 252/250 253 son who has recently finished his B.E This child was selected in many Top Institutions of the country but due to lack of funds he was provided education from M D University, Haryana, the youngest child a girl aged about 20 years, scored more than 95 % in 10th and 12th classes (CBSE). She was student of Modern School where she studied on scholarship of the school. She was selected in Top Indian Institution in Engineer, Architecture being a science student but all the institutions demanded huge amount of money, therefore, even after obtaining more than 96% she could not join those institutions and under compulsion joined Shri Ram College of Commerce as BA Economics (Hons) student in Delhi University. 5 His wife is a Post Graduate but due to ill heath she is unable to do any job . Convict himself is a Science Graduate from Delhi University with no past criminal record except the present involvement. He and his family has no assets either moveable or immovable. He is the only male member in his family who is somehow meeting bread and butter of his house. Entire family of the convict is at a stage where if no lenient view would be taken by the Court then the super bright children and their education would tumbled down and the children would fail their target which will C C No.29/10 253/250 254 also ruin their bright future ahead.
6 Convict had faced serious injustice in his office when accused persons who are found guilty and were indicted in Vigilance Enquiry were let off, however, after conviction he may be given some concession so far as sentence is concerned. 7 Due to education of children he is in a little debt, therefore, feels difficult even to pay the fine amount, therefore prays that some leniency in imposing fine be taken. He further prays that most lenient sentence be provided to him as he has already suffered prolong trial which has already ruined his life and future of his family members. Any hard sentence would amount to double punishment in the matter which otherwise convict does not deserve. He had never been beneficiary of any pecuniary gain of aforesaid alleged offence. Hon'ble Supreme Court has taken lenient view in the matter where prolong trial has taken place ruining the life of entire family. Convict is not a previous convict, therefore he be granted benefit of Probation of offenders Act. C C No.29/10 254/250 255 8 It is argued on behalf of convict Chaman Kumar that he is innocent and a victim of high handedness of the CBI He has done his graduation from Delhi University and persuaded his further academic course in Campus Law Centre, Delhi University but could not completed due to this case. He has lost his business after the raids conducted by CBI at his business premises as well as residential premises. Because of these raids he has lost his credibility in business community as well as respect in the social circle and because of these loses he has no bank balance, no social security, no LIC, no medical insurance and also living in a rental house for the past 25 years. He and his whole family is living life under great mental stress.
9 His family consists of his ailing mother of 75 years old and 50 years old wife who is suffering from diabetes and various other ailments. He has to take his ailing mother and wife to the doctor's clinic for regular checkups twice a week. There is no male member to look after the whole family. He has one marriageable daughter and a son who was studying in Global School of Animation and was denied examination ticket for not paying the C C No.29/10 255/250 256 school fees for the year 2011. He is the only bread earner of his family. He had never been beneficiary of any pecuniary gain of alleged offence. He has lost his business, further education in these 25 years of litigation period besides this due to paucity of funds he could not provide any quality time as well as any shelter to his children due to attending courts. Because of stigma he could not get any business. Therefore, the entire academic career and his flourishing business as well as his children have also sustained severe brunt of the litigation, hence lenient view may be taken in awarding sentence and fine. Hon'ble Supreme Court has taken lenient view in the matter where prolong trial has taken place ruining the life of entire family. Convict is not a previous convict, therefore he be granted benefit of Probation of offenders Act. 10 It is argued on behalf of convict Vipin Kumar Sharma that he is not a previous convict. He has suffered mental torture since 1986 i.e. for the last 26 years by running in the court of law during the trial of this case. He has also suffered heart attack in 1999. He is the only earning member in his family. He has to look after two orphan children whose parents (his sister and his brother C C No.29/10 256/250 257 in law) were killed by terrorists in Punjab in 1992. During the trial for the last 26 years he has maintained calm and quite character. Offence U/s 120B r/w 420 IP C is punishable upto 7 years. He is a private person, therefore U/s 360 Cr PC he can be released on probation of good conduct as he is first offender, as per ruling of Hon'ble High Court of Delhi, Pawan Kumar Vs State Crl. L J 2310 and 1979 Crl. L.J.634, SC, probation can be granted in alternative a lenient view may be taken against him.
11 It is argued on behalf of convict K B Mehta that he had only introduced the account of V Inder Pal on the behest of his neighbor Raman Kumar. There is no transaction in the account so introduced by him. He is not the beneficiary in any manner. He is suffering from hypertension for which he is under regular medication treatment. His wife is suffering from arthritis with problem in her knees because of which her movements are restricted for which she requires his regular support. He has undergone the agony of trial for about 24 years and deserves leniency. 12 Ld. Defence Counsel on behalf of accused Vipin C C No.29/10 257/250 258 Kumar, Chaman Kumar and K B Mehta argued that all these accused are convicted for the offence punishable U/s 120 B r/w Sec. 420 IPC and for the substantive offence punishable U/s 420 IPC. It is argued that maximum punishment for the offence punishable U/s 420 IPC is seven years, hence accused may be given benefit of section 360 Cr PC and they may be released on probation of good conduct. It is argued that according to Section 360 Cr PC if the court is not giving benefit of Section 360 Cr PC then special reasons are to be given. Ld. Defence Counsel in this regard placed reliance on the following authorities:
Narsa Ram & Ors. Vs. State of Rajasthan, 2008 Crl. L. J. 4622 and S. Natarajan Vs. State of Mysore, 1980 Crl. L. J. 447, Dilbag Singh Vs. State of Punjab (1979) 2 Spreme Court Caes 103 13 Ld. Defence Counsel argued that even in case of murder and homicide not amounting to murder benefit of probation have been granted to the accused. Ld. Defence Counsels in this regard placed reliance on following authorities:
Siddesh Anil Shirsat Vs. state of Maharashtra, 2009 Crl. L.J. (NOC) 324 (Bom.), Kangu Vs. State, 2007 Crl. L.J.(NOC)286 (MAD).
C C No.29/10 258/250 259
14 It is argued by Ld SPP that accused Raman Kumar , who was working as clerk in service Branch of SBI, Parliament Street, as a public servant, abused his official position, in connivance and conspiracy, of his coaccused Chaman Kumar, Vipin Kumar Sharma and K B Mehta obtained pecuniary advantage/wrongful gain of Rs.1,35,000/ for himself and of Rs. 4,32,000/ for his brother Chaman Kumar and of Rs.53,49,778/ for his friend Vipin Kumar Sharma by illegally removing/destroying 41 cheques and thereby caused a total wrongful loss of Rs. 58,16,728/ to the banks concerned.
15 It is further submitted by Ld SPP that in criminal appeal No. 299 of 1997, titled State Rajasthan Vs Dhool Singh, Hon'ble Supreme Court, on December 18th , 2003 has held that "the Courts should bear in mind that there is a requirement in law that every conviction should be followed by an appropriate sentence within the period stipulated in law. Discretion in this regard is no absolute or whimsical. It is controlled by law and to some extent by judicial discretion applicable to the facts of C C No.29/10 259/250 260 the case. Therefore, there is need for the Courts to apply its mind, while imposing sentence , as to why it should be less then maximum sentence prescribed under law."
16 Convicts be awarded consecutive sentence. 17 I have carefully considered all the authorities relied upon by Ld. Defence Counsels. There is no dispute with the preposition of law discussed in these authorities, however every case has its own facts and circumstances. Ratio of law laid down in a particular authority is to be applied according to the facts and circumstances of each case.
18 In the case in hand accused in connivance and conspiracy with each other had caused total wrongful loss of Rs. 58,16,728/ to various banks in the year 1983 to himself and to his co accused. Convict Raman Kumar was the then working as clerk in service branch of SBI, Parliament Street. He abusing his official position as a public servant malafidely destroyed/removed the cheques due to which the same could not reach to the concerned branch but after the expiry of three days amount mentioned in those C C No.29/10 260/250 261 cheques was credited in the account of his coaccused. Thus he had actively participated in causing a wrongful loss of Rs.58,16,728/ to various banks. There is specific evidence that out of 41 cheques amount of two such cheques of Rs.70,000/ and Rs. 65,0000/ credited in his account, which he had withdrawn by issuing cheques thus there is direct evidence that he had received the benefit of Rs. 1,35,000/.
19 Convict Chaman Kumar is the brother of Convict Raman Kumar . There is direct evidence that out of 41 cheques amount of six such cheques amounting to Rs.4,32,000/ credited in his account which he had withdrawn by issuing various cheques including self cheques.
20 It is proved on the file that convict Vippin Kumar Sharma is close friend of Convict Raman Kumar . Convict Vipin Kumar (A3) had opened 11 A/cs in different names, in different branches of SBI, Punjab & Sind Bank and UCO Bank, details of which is as under some of which he had opened with the help of convict Raman Kumar.
1 SBI Paharganj Branch A/c No.8109 D5 Ext PW1/A) in the name of Vipin Bhardwaj which was introduced by Shri Rajesh C C No.29/10 261/250 262 Bajaj 2 SBI Nazafgarh - A/c No.14322 (D9 Ext5/B) in the assumed name of Naveen Kumar introduced by Ram Lakhan. 3 SBI Mayapuri A/c No.1949 D24 (Ext 6/A) in the assumed name of Santosh Kumar Sharma purported to be proprietor of M/s Santo Sons introduced by Vinod Ahuja.
4 SBI Shakurbasti A/c No.543 in the name of M/s Santosh Sales as V.Kumar which was introduced by Ashok Kumar of M/s Ashoka Saree Emporium (D31 Exts PW Ext 18/1). 5 SBI Chandini Chowk Branch A/c No.3/47000 in the name of M/s Vishal Plastic Enterprise through its proprietor as V.Inder Pal which was introduced by Sh. K B Mehta of Kay Bee & Co i.e. Accused No.4.
6 PSB Naraina A/c No.2475 in the name of M/s Simplex Traders as Vipin Mohan Sharma which was introduced by Hari Charan Singh.
7 PSB Defence Colony Branch A/c No.1289 in the name of M/s Swastik Enterprise as its proprietor Vipin Chandra introduced by Hazare Singh.
8 PSB Asaf Ali Road A/c No.2013 in the name of Vipin Kumar C C No.29/10 262/250 263 Chawla s/o D N Chawla, r/o 16/2, Bajaj House, 87, Nehru Place, New Delhi, introduced by PW141 Satinder Singh. 9 PSB Karol Bagh A/c No.8342 in the name of Vipin Sharma introduced by Shri S.S.Kalia .
10 UCO Bank, Kamla Nagar A/c No.1900 in the name of Vipan Kumar introduced by Shri Raj Kumar.
11 UCO Branch New Sabzi Mandi Branch A/c No.3573 in the name of Vipin Kumar introduced by Shri R.K.Verma. 21 It is proved on the judicial file that convict Raman Kumar had arranged introducers who had introduced Convict Vipin Kumar in different names for opening of some of the above said accounts. It is also proved on the judicial file that convict Vipin Kumar had illegally withdrawn a total amount of Rs.52,49,728/ from the above said accounts, thus caused a wrongful loss of above said amount to the banks and wrongful gain of the equivalent amount to himself in the year 1983. Out of which he had not returned a single penny to the bank till date. 22 It is proved on the judicial file that convict K B Mehta had introduced convict Vipin Kumar as V Inderpaul while opening an account in the name of M/S Vishal Plastic Enterprises in SBI C C No.29/10 263/250 264 Chandni Chowk Branch. Convict Vipin Kumar had obtained a cheque book from the above said account out of which he had issued 8 cheques which had been destroyed / removed by his co convict Raman Kumar due to which the same could not reached to the issuing branch hence could not be debited in the above said account opened in the name of V Inderpaul thus on record this account remained inoperative but convict Vipin Kumar had withdrawn an amount of Rs.19,30,000/ qua the above said 8 cheques. However there is no evidence on the judicial file that he had availed any pecuniary gain in this fraud. His role was limited upto the introduction of convict Vipin Kumar as V. Inderpaul. 23 Economic offences are more serious and grave than the other criminal offences like murder etc. Hon'ble Supreme Court in State of Gujrat Vs. Mohan Lal Jitamalji Porwal and another AIR 1987 Supreme Court 1231 in this regard, has held as follows:
"Ends of justice are not satisfied only when the accused in a criminal case is acquitted. The community acting through the State and the Public Prosecutor is also entitled to justice. The cause olf the community deserves equal treatment at the hands of the Court in the discharge of its judicial functions. The community or the State C C No.29/10 264/250 265 is not a person nongrata whose cause may be treated with disdata. The entire community is aggrieved if the economic offenders who ruin the economy of the State are not brought to book. A murder may be committee in the heat of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with any eye on personal profit regardless of the consequence to the Community. A disregard for the interest of the Community can be manifested only at the cost of forfeiting the trust and faith of the community in the system to administer justice in an even handed manner without fear of criticism from the quarter which view white colour crime with the permissive eye unmindful of the damage done to the National economy and national interest.
24 Hon'ble Supreme Court in Balkrishna Chhaganlal Soni Vs State of West Bengal (1974) 3 SSC 567 has observed that social and ecnomic offences stood on a graver footing in respect of punishment and if judicial institutions were not to be cynically viewed by the community, the Courts must help the process of conviction."
C C No.29/10 265/250 266 25 Corruption is a scourge that not only severally affects progress and development in the society but also poses a grave challenge to governance itself. The United Nations Global Reports on Crime and Justice quotes public opinion surveys in a number of countries, to point out that citizenry in those countries ranks corruption as one among the five most important problems facing their society. More importantly, the public in such countries seriously questions the ability of the Criminal Justice Administration to provide any bulwark against corruption. The consequence of such perceptions is a growing public cynicism and distrust in almost all the Government institutions, which is a matter of serious concern. Unfortunately, India ranks prominently high in the list of countries plagued by corruption. Anti Corruption measures in India are perceived by the people to be weak and ineffective. More than corruption itself , it is the widespread public perception that corruption is not or would not be punished, that is detrimental to the society.
26 Imposition of sentence without considering its effect on the social order in many cases may be in reality a futile exercise. The social impact of the crime i.e. where it relates to offences C C No.29/10 266/250 267 against women, dacoity, kidnapping, misappropriation of public money, treason and other offences involving moral turpitude or moral delinquency which have great impact on social order and public interest, cannot be lost sight of and per se require exemplary treatment. Any liberal attitude by imposing meager sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be result wise counterproductive in the long run and against social interest which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system.
27 In view of above discussion and considering the gravity and seriousness of matter this Court is of opinion that accused are not entitled for the benefit of Section 360 Cr P C in this case.
28 In Sewaka Perumal Vs State of T N AIR 1991 SC 1463 Hon'ble Supreme Court has held as follows:
" Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law, and society could not long endure under such C C No.29/10 267/250 268 serious threats. It is, therefore, the duty of every Court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc."
29 In Dhananjoy Chatterjee Vs State of W.B (1994) 2 SCC 220, Hon'ble Supreme Court has held as follows:
" Shockingly large number of criminals go unpunished thereby increasingly encouraging the criminals and in the ultimate, making justice suffer by weakening the system creditability. The imposition of appropriate punishment is the manner in which the Court responds to the society cry for justice against the criminals. Justice demands that Court should imposed punishment befitting the crime so that the Courts reflect public abhorrence of the crime. The Court must not only keep in view the rights of the criminal but also the rights of the victim of the crime and the society at large while considering the imposition of appropriate punishment."
30 Hon'ble Supreme Court with regard to delay of 28 years in disposal of the case has held that it is not a sufficient ground to take a lenient view. In Sunil Kumar Vs State of UP, C C No.29/10 268/250 269 (2010) 2 SCC 5 has held as follows:
" Defence contention before Supreme Court that since incident took place about 28 years back, sentence of four years RI was harsh punishment tenability - Held, in fact, punishment was on lenient sight merely because appeal remained pending and merely because incident took place long back would not by itself justify and interference with punishment, particularly,when punishment itself is a lenient one."
31 After considering all the arguments raised in the Court and in view of the above discussion, convict Raman Kumar is sentenced to undergo one year RI along with a fine of 1,00,000/ ( Rs. one lac only) I D three months S I U/s 120B, 420 and 167 IPC r/w Section 5 (2) r/w Section 5(1) (d)) P C Act, 1947. 32 Convict Raman Kumar is also sentenced to undergo five years RI along with a fine of Rs.50,000/ ( Rs. Fifty Thousand) I D three months S I for the substantive offence punishable U/s 420 IPC .
33 Convict Raman Kumar is also sentenced to undergo C C No.29/10 269/250 270 two years RI along with a fine of Rs.50,000/ ( Rs. Fifty Thousand) I D three months S I for the substantive offence punishable U/s 167 IPC .
34 Convict Raman Kumar is also sentenced to undergo five years RI along with a fine of Rs.50,000/ ( Rs. Fifty Thousand) I D three months S I for the substantive offence punishable U/s 5 (2) r/w 5 (1) (d) of P C Act 1947.
35 Convict Chaman Kumar is sentenced to undergo one year RI along with a fine of Rs. 1,00,000/ ( Rs. one lac only ) I D three months S I U/s 120B, 420 IPC.
36 Convict Chaman Kumar is also sentenced to undergo four years RI along with a fine of Rs.1,50,000/ ( Rs. One lac & Fifty Thousand) I D three months S I for the substantive offence punishable U/s 420 IPC .
37 Convict Vipin Kumar Sharma is sentenced to undergo one year RI along with a fine of Rs. 1,00,000/ ( Rs. one lac only ) I C C No.29/10 270/250 271 D three months S I U/s 120B, 420 IPC.
38 Convict Vipin Kumar Sharma is also sentenced to undergo six years RI along with a fine of Rs.4,00,000/ ( Rs. Four Lac only) I D three months S I for the substantive offence punishable U/s 420 IPC .
39 Convict K B Mehta is sentenced to undergo one year RI along with a fine of Rs. 1,00,000/ ( Rs. one lac only ) I D three months S I U/s 120B, 420 IPC.
40 Convict K B Mehta is also sentenced to undergo one year RI along with a fine of Rs.50,000/ ( Rs. Fifty Thousand) I D three months S I for the substantive offence punishable U/s 420 IPC.
41 All the sentences will run concurrently. A copy of judgment and this order on sentence be given to all the accused free of costs. Benefit of Section 428 Cr P C is given to all the accused. Ordered accordingly.
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ANNOUNCED IN OPEN COURT (V K MAHESHWARI)
TODAY ON 7.6.2011 SPECIAL JUDGE: DELHI
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