Delhi District Court
Cbi vs . 1) Ashok Kumar Sehgal on 26 November, 2014
1
IN THE COURT OF SH. BRIJESH KUMAR GARG:
SPECIAL JUDGE: CBI01, CENTRAL DISTRICT. DELHI
CC No.254/07 RC : 17(A)/91
PS : CBI/ACB/New Delhi
U/s : 120B/420/468/471
IPC & 13(1)(d) r/w sec
13(2) of P.C. Act, 1988
CBI Vs. 1) Ashok Kumar Sehgal
S/o Sh. Ved Prakash,
R/o 840, Shastri Nagar, Delhi.
2) Sri Kant Singh
S/o Late Sh. T.K. Singh,
R/o 2033, Sanskriti Apartment,
Plot No.35, Sector10, Dwarka,
New Delhi74.
Date of Institution : 19.10.1992
Judgment Reserved : 14.11.2014
Judgment Delivered : 26.11.2014
J U D G M E N T
1. In the present case, both the accused are facing trial for the offences punishable u/s. 120B IPC r/w Sec. 13 (1) (d) punishable CBI Vs. Ashok Kr. Sehgal etc., (CC254/07) pg 1 of 87 Special Judge, CBI01, Central, Delhi 2 u/s 13(2) of The Prevention of Corruption Act, 1988 & Section 420, 468 and 471 of the IPC. They are also facing trial for the offences punishable u/s. 420 IPC and Section 13(1) (d) of The Prevention of Corruption Act, 1988, punishable u/s. 13(2) of the said Act. In addition, the accused Ashok Kr. Sehgal is also facing trial for the offences punishable u/s. 468 & 471 of the IPC. Brief facts of the case
2. It has been stated in the charge sheet that on the basis of a source information, the present case bearing No. RC17(A)/91 DLI, dated 18.03.1991 was registered, wherein, it was alleged that accused Ashok Kumar @ Ashok Kumar Sehgal, while working as Sr. Accounts Assistant at Indian Airlines, IGI Airport New Delhi, during the period 198990, entered into a criminal conspiracy with Sh. S.K. Singh, Asstt. Engineering Manager; Sh. A.K. Zutshi, Superintending Aircraft Engineer; Sh. N.Bhattacharjee Asst. Engineering Manager and Sh. V.D. Sharma, Store and Supply Superintendent, with the object to CBI Vs. Ashok Kr. Sehgal etc., (CC254/07) pg 2 of 87 Special Judge, CBI01, Central, Delhi 3 cheat the Indian Airlines by submitting forged/false 'statement of payment to the employees', under Contributory Family Medical Scheme (CFMS), in the name of his coconspirators and in pursuance to the said criminal conspiracy, accused Ashok Kumar @ Ashok Kumar Sehgal, prepared various forged / false 'statements of payments to the employees', in the name of S.K.Singh, A.K.Zutsi, N.Bhattarchjee and V.D.Sharma and thereby induced the Accounts Officer, Indian Airlines, IGI Airport, to pass the same for payment.
3. It is further stated that accused Srikant Singh has not preferred any CFMS claims, bearing staff No. 313998, during the year 1989 and 1990 for a total sum of Rs.17,903.10p. and the CFMS cell of medical section at IGI Airport has neither processed nor passed the said claims in the name of the accused Srikant Singh. It is further stated that CFMS Cell had never sent any such 'statement of payment to the employees'. But, accused Ashok Kumar @ Ashok Kumar Sehgal, dishonestly and fraudulently CBI Vs. Ashok Kr. Sehgal etc., (CC254/07) pg 3 of 87 Special Judge, CBI01, Central, Delhi 4 inserted the forged / bogus 'statement of payment to the employees', under CFMS sheets bearing Nos. 485 dated 14.12.1989; sheet No.518 dated 02.01.90; sheet No. 680 dated 26.02.90 and sheet No. 901 dated 21.05.90 in the names of Srikant Singh and S.K. Singh, bearing different staff numbers and managed to insert the same in the bundles of genuine "statements of payment" to the employees under CFMS, purported to have been received from CFMS Cell of the Medical Section.
4. It is further stated that Accused Ashok Kumar @ Ashok Kumar Sehgal dishonestly and fraudulently processed himself the two "statements of payment" to employees under CFMS bearing No. 518, dated 02.01.1990 and bearing No. 485, dated 14.12.89, purported to have been received from CFMS Cell. Thereafter, the bill passing & payment section prepared five cheque forwarding vouchers bearing No. 8077 dated 19.12.89; No. 1436, dated 29.05.90; No.1438, dated 29.05.90; No. 8081 dated 04.01.89 and CBI Vs. Ashok Kr. Sehgal etc., (CC254/07) pg 4 of 87 Special Judge, CBI01, Central, Delhi 5 No.1830 dated 05.03.90 and accused Ashok Kumar @Ashok Kumar Sehgal dishonestly and fraudulently himself prepared two cheque forwarding vouchers Nos. 8077 dated 19.12.89 and No. 8081 dated 04.01.89, in favour of S.K. Singh and Srikant Singh and the same were sent to accounts section at Safdarjung and thereafter, the accounts section prepared five account payee cheques bearing No.470482 dated 19.12.89 for Rs.2803/; cheque No. 471179 dated 05.01.90 for Rs.3200/; cheque No. 473213 dated 13.03.90 for Rs.3800/; cheque No. 476976 dated 01.06.90 for Rs.4110 and cheque No. 475223 dated 05.06.90 for Rs.3990.10p, in favour of Srikant Singh (S.K. Singh) and these cheques were forwarded to bill passing & payments section at IGI Airport, New Delhi, for disbursement.
5. It is further stated that accused Srikant Singh fraudulently and dishonestly collected the aforesaid five cheques and deposited the same in his savings bank account No. 7490 at Indian Bank, Janak puri Branch, New Delhi and the money was CBI Vs. Ashok Kr. Sehgal etc., (CC254/07) pg 5 of 87 Special Judge, CBI01, Central, Delhi 6 subsequently withdrawn by him, by issuing self cheques.
6. It is further stated that accused Srikant Singh shared the aforesaid illgotten money with coaccused Ashok Kumar @ Ashok Kumar Sehgal and issued cheque No. 427758 dated 20.06.90 for Rs.8100/, in his favour, in lieu of the services rendered by him for the said account and accused Ashok Kumar @ Ashok Kumar Sehgal deposited the said cheque in his savings Bank account No. 4645 at Central Bank of India, Khan Market Branch, New Delhi and utilized the said amount.
7. It is further stated that both the accused persons have conspired together and have dishonestly and fraudulently cheated the Indian Airlines to the tune of Rs.17,903.10p. and caused undue pecuniary loss to the Indian Airlines and corresponding undue pecuniary gain to themselves, by corrupt and illegal means and by abusing their official positions, as such public servants. CBI Vs. Ashok Kr. Sehgal etc., (CC254/07) pg 6 of 87 Special Judge, CBI01, Central, Delhi 7
8. It is further stated that during investigations, the questioned documents were sent to GEQD, Shimla, for handwriting expert opinion, who gave positive opinion about the handwriting of accused Ashok Kumar @ Ashok Kumar Sehgal.
9. After the completion of investigation and after receiving expert opinion from GEQD, Shimla, the sanctions for prosecution of the accused persons were also obtained from the competent disciplinary authorities and thereafter, the charge sheet was filed in the court and the accused were sent up for trial.
10. On 08.07.1996, order on charge was passed by the Ld. predecessor of this court and in pursuance to the said order, the charges for the offences punishable under Sections 120B r/w Sections 420, 468, 471 IPC and read with Section 13(1) (d) punishable under Section 13(2) of The Prevention of Corruption Act, 1988; Sections 420 IPC and Sec. 13 (1) (d) punishable under Section 13(2) of The Prevention of Corruption Act, 1988, were CBI Vs. Ashok Kr. Sehgal etc., (CC254/07) pg 7 of 87 Special Judge, CBI01, Central, Delhi 8 framed against both the accused persons, on 19.07.1996, to which, they pleaded not guilty and claimed trial. In addition, the charges for the offences punishable u/s. 468 & 471 IPC were also framed against the accused Ashok Kumar Sehgal, to which he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
11. During the course of trial, the prosecution examined a total of 35 witnesses and when the matter was taken up by the Ld. predecessor of this court, for recording of statements of accused persons, u/s. 313 Cr.P.C., it was observed by him that there were several material discrepancies, on record, in recording the evidence and mentioning of the exhibit numbers on the documents and therefore, vide order dated 17.05.2010, a retrial was ordered by the Ld. Predecessor of this court, with following observations:
"We are now facing a similar situation. The only course left would be to start trial a fresh.
CBI Vs. Ashok Kr. Sehgal etc., (CC254/07) pg 8 of 87 Special Judge, CBI01, Central, Delhi 9 Keeping in mind the fact that accused persons have been facing trial for 18 years, I expect CBI to pull up its socks and conclude recording of testimony of witnesses at the earliest. Evidence of those witnesses which is unambiguous and is against any particular accused which is on record shall be read against them. Such a witness need not be examined again. Let it be further clear that I am not going to allow any frivolous adjournments. In case CBI is interested it should ensure appearance of its witnesses in time on all the dates which are fixed for it."
12. During the course of retrial, a total of 11 witnesses were re examined by the Ld. Predecessor of this court. Therefore, in view of the order dated 17.05.2010, only 24 witnesses, namely, PW1 to PW6, PW8 to PW10, PW12 & PW13, PW15, PW17, PW21, PW22, PW25 to PW29, PW31, PW32, PW34 and PW35, who CBI Vs. Ashok Kr. Sehgal etc., (CC254/07) pg 9 of 87 Special Judge, CBI01, Central, Delhi 10 were examined prior to 17.05.2010, are to be read in the present case, along with the 11 witnesses, who were examined after 17.05.2010, for the purposes of proving the prosecution case against the accused persons. The details of these witnesses are as under:
A. The witnesses examined prior to 17.05.2010
i) PW1 Vinod Kashyap, who was working as Finance Manager, Indian Airlines, in April 1992 and granted the sanction for prosecution of accused Ashok Kr. Sehgal, vide sanction order Ex.PW1/A.
ii) PW2 Pradip Kumar Banerjee, Addl. Secretary, Ministry of Coal, Govt. of India, New Delhi, who was the Chairman and Managing Director of Indian Airlines on 10.07.1992. He has granted the sanction for prosecution of accused Sri Kant Singh, vide sanction order Ex.PW2/A.
iii) PW3 Yashpal Vij, who was working as Operating Officer, at New Delhi Main Branch of SBI, on 05.07.1991. He handed over CBI Vs. Ashok Kr. Sehgal etc., (CC254/07) pg 10 of 87 Special Judge, CBI01, Central, Delhi 11 14 cheques to the Investigating Officer, vide seizure memo Ex.PW3/A.
iv) PW4 Shanti Lal Khanna, who was working as Sr. Vigilance Officer, Indian Airlines, on 06.06.1991. This witness has handed over some documents to the Investigating Officer, vide seizure memo Ex.PW4/A.
v) PW5 Smt. Veena Sethi, Dy. Manager (Finance), Indian Airlines, who was working as Accounts Officer in Cash and Bank Section, Northern Region, Indian Airlines, Thapar House, New Delhi, on 11.09.1991. This witness was section incharge of cash and bank and was entrusted with responsibilities for making payments and receipts to the staff and outsiders. She handed over the documents to the CBI, vide letter dated 11.09.1991 Ex.PW5/C. This witness has also identified the signatures of Shri Santokh Singh and A.N.Viz, the signatories and issuing authority of cheque No. 470482 dt. 19.12.89, Ex.PW5/E1; cheque No. 471179 dated 05.01.90 Ex.PW5/E2; cheque No. 473213 Ex.PW5/E3; cheque No.476976 dated 01.06.90 Ex.PW5/E4.
CBI Vs. Ashok Kr. Sehgal etc., (CC254/07) pg 11 of 87 Special Judge, CBI01, Central, Delhi 12 She has also identified signatures of Sh. Santokh Singh and Krishan Kumar on the cheque No.475223 dated 05.06.90 Ex.PW5/E5.
vi) PW6 Amrit Nain Vij, Dy. Manager (Finance), Indian Airlines, who was working as Accounts Officer, Indian Airlines at Thapar House, New Delhi, in 1990. This witness has identified his signatures and that of Shri Santokh Singh, on cheque No.470482 dt. 19.12.89, Ex.PW5/E1, issued in the name of accused Srikant Singh. He has deposed that he along with Santokh Singh were the cosignatories of the cheque.
vii) PW7 Shri Santokh Singh. This witness has been re examined as NewPW2, in compliance of the order dated 17.05.2010.
viii) PW8 Ravi Kumar Bajaj, who was working as Manger, Indian Bank, Janakpuri Branch, in the year 1991. He has proved the account opening form pertaining to saving bank account No.7490 dated 18.03.85, of accused Sri Kant Singh, as Ex.PW8/B. He has also proved five payinslips Ex.PW8/D1 to Ex.PW8/D5. He CBI Vs. Ashok Kr. Sehgal etc., (CC254/07) pg 12 of 87 Special Judge, CBI01, Central, Delhi 13 further proved the clearance of cheque bearing No. 427758, dated 20.06.90, for Rs.8100/ Ex.PW8/F, issued by accused Sri Kant Singh, from his savings bank account, in favour of accused Ashok Kr. Sehgal.
ix) PW9 Krishan Kumar, Dy. GM (Finance), who was working as Asstt. Finance Manager in Indian Airlines, in the year 1990. He has proved the cheque voucher relating to cheque No.475223, Ex.PW5/E5, in the name of Sri Kant Singh, as Ex.PW7/E3.
x) PW10 Sh. Naresh Kumar Jain who was posted as Finance Manager Northern Region, Indian Airlines, Thapar House, New Delhi, in January 1991, who signed as authorized signatory of the cheques of CFMS claims.
xi) PW11 Shri B.L. Sood. This witness has been reexamined as NewPW1, in compliance of the order dated 17.05.2010.
xii) PW12 Shri Basant Kumar Mahapatra, Dy. G.M., who was working as Asstt. Engineering Manager, Indian Airlines, in the year 1991. This witness has not deposed anything about the accused persons, in the present case.
CBI Vs. Ashok Kr. Sehgal etc., (CC254/07) pg 13 of 87 Special Judge, CBI01, Central, Delhi 14
xiii) PW13 Shri Suresh Kumar Singh, Dy. G.M. Engineering, who was posted as Shift Incharge, Line Maintenance, Engineering Deptt. of Indian Airlines, who has deposed that no CFMS claim was taken by him in the year 1988, 1989 & 1990 and he has not received any payment against cheques Ex.PW5/E2, Ex.PW5/E3 & Ex.PW5/E5 and these cheques were never deposited in his account for payment.
xiv) PW14 Sh. Vakil Shah, who was working as Sr. Office Superintendent, in the year 198990. This witness has been re examined as NewPW6, in compliance of the order dated 17.05.2010.
xv) PW15 Smt. Beena Gairola, who was working as Office Asstt. in Medical Section of Indian Airlines, in the year 198990. She has deposed that the CFMS Sheet No. 901 Ex.PW.4/B (Ex.NewPW3/A); 485 Ex.PW.14/D (Ex.NewPW3/C) and CFMS sheet bearing No. 674 Ex.PW15/A (Ex.NewPW9/A) and CFMS sheet No. 680 Ex.PW5/A (Ex.NewPW6/A), were never signed by her and someone has forged her signatures on them. CBI Vs. Ashok Kr. Sehgal etc., (CC254/07) pg 14 of 87 Special Judge, CBI01, Central, Delhi 15 Xvi) PW16 Sh. Rajbir Singh. This witness has been reexamined as NewPW9, in compliance of the order dated 17.05.2010. xvii) PW17 Dr. Pradyuman Sodhani, Sr. Manager Medical, IGI Airport, who was working as Medical Officer at Palam Airport, in the year 198990. He has identified signatures of Dr. V. Bhagia, who was the then Dy. Chief Medical Officer, on the statements of payment, under CFMS, Ex.PW15/A (Ex.NewPW9/A), Ex.PW4/B (Ex.NewPW3/A), Ex.PW14/D (Ex.NewPW3/C) and Ex.PW5/A (Ex.NewPW6/A). He has also identified his signatures on specimen signature sheets Ex.PW16/A1 to Ex.PW16/A5 (Ex.NewPW8/B1 to Ex.NewPW8/B5).
xviii) PW18 Sh. Subhash Chander. This witness has been re examined as NewPW10, in compliance of the order dated 17.05.2010.
xix) PW19 Sh. Om Prakash Sharma. This witness has been re examined as NewPW4, in compliance of the order dated 17.05.2010.
xx) PW20 Sh. Shashi Kant Oberoi. This witness has been re CBI Vs. Ashok Kr. Sehgal etc., (CC254/07) pg 15 of 87 Special Judge, CBI01, Central, Delhi 16 examined as NewPW5, in compliance of the order dated 17.05.2010.
xxi) PW21 Dr. Ganesh Shanker Pandey, who was posted as Medical Officer at Palam Airport, in the year 198990. He has proved the register, in which the sheets pertaining to CFMS claims are entered. He has also stated that the CFMS sheets Ex.PW5/A, Ex.PW15/A, Ex.PW14/B, Ex.PW4/B & Ex.PW14/D, do not bear his signatures.
xxii) PW22 Sh. Anand Swaroop Sharma, who was working as Asstt. Manager, State Bank of India, Main Branch, New Delhi, in the year 1991. He forwarded the cheque bearing No. 471179 dated 05.01.90 for Rs.3200/ Ex.PW5/E2, in favour of S.K. Singh, to Indian Bank, Janak Puri Branch, for clearance, vide letter Ex.PW22/A. xxiii) PW23 Sh. Patel Ram Parashar. This witness has been re examined as NewPW7, in compliance of the order dated 17.05.2010.
xxiv) PW24 Sh. Raghbir Singh Narwal. This witness has been CBI Vs. Ashok Kr. Sehgal etc., (CC254/07) pg 16 of 87 Special Judge, CBI01, Central, Delhi 17 reexamined as NewPW8, in compliance of the order dated 17.05.2010.
xxv) PW25 Sh. Sudan Pal, Sr. Inspector Engineering Section, IGI Airport, who was posted as Inspector Engineering in Indian Airlines at IGI Airport, in the year 1991. This witness was called to the CBI office on 20.12.91, when the specimen writing/signatures of accused Ashok Sehgal were taken on the sheets ExPW25/A1 to Ex.PW.25/A5, Ex.PW25/B1 to Ex.PW25/B24 and Ex.PW4/C1 to Ex.PW4/C18.
xxvi) PW26 Sh. Ashok Kumar Gupta, who was working as Store Helper in Indian Airlines, IGI Airport, New Delhi. He has deposed that specimen signatures of S.K.Singh and A.K.Jutshi, were taken by the CBI, in his presence, on the sheets Ex.PW26/A1 to A5 and Ex.PW26/B1 to B5 respectively. xxvii) PW27 Sh. Mahender Kumar Kansal. This witness was posted as Sub Accountant, Central Bank of India, Khan Market, New Delhi, in the year 1991. This witness has supplied the documents to the IO, vide seizure memo, dated 30.07.1991, CBI Vs. Ashok Kr. Sehgal etc., (CC254/07) pg 17 of 87 Special Judge, CBI01, Central, Delhi 18 Ex.PW27/A. He has proved the deposition of a sum of Rs.8100/ on 23.10.1990 vide payinslip Ex.PW27/B and cheque Ex.PW8/F, in the account of accused Ashok Kumar Sehgal. xxviii) PW28 Sh. Anil Kumar Goel. This witness was posted as Assistant Finance Manager in Indian Airlines, in the year 1990. He was one of the authorized signatories of the cheque No. 476976, dated 01.06.1990, in favour of Srikant Singh, for Rs. 4,110/ & cheque No. 471179, dated 05.01.1990, for Rs.3,200/ in favour of Sh. S.K. Singh.
xxix) PW29 Sh. Jitender Singh, who was posted as Account Assistant in Indian Airlines, Palam Airport, New Delhi, during the year 1990. He prepared some cheque forwarding memos at the instance of accused Ashok Kumar.
xxx) PW30 Sunil Mathur. This witness has been reexamined as NewPW3, in compliance of the order dated 17.05.2010. xxxi) PW31 Smt. Meera Bhatia. She was posted as Typist in the office of Superintendent, Indian Airlines, CFMS Cell, Medical Section, IGI Airport, New Delhi, during the period 198991. She CBI Vs. Ashok Kr. Sehgal etc., (CC254/07) pg 18 of 87 Special Judge, CBI01, Central, Delhi 19 has deposed that the CFMS payment sheets bearing No. 485 Ex.PW14/D, No. 518 Ex.PW14/B, No. 680 Ex.PW5/A and No. 901 Ex.PW4/B, were not typed by her and these sheets were the forged sheets.
xxxii) PW32 Sh. Som Kumar Sharma. He was posted as Superintending Air Craft Engineer, Indian airlines, IGI Airport, New Delhi. He has deposed that he did not receive the payment of Rs.600/ as shown in CFMS sheet Ex.PW.14/D and Ex.PW. 14/D does not bear his signatures.
xxxiii) PW33 Sh. Subhash Chander Yadav. This witness has been reexamined as NewPW11, in compliance of the order dated 17.05.2010.
xxxiv) PW34 Sh. Manoj Kumar Sharma. He was working as Branch Manager, Central Bank of India, Khan Market Branch, New Delhi. He has proved the specimen signature card, Ex.PW24/B1, pertaining to account No. 4645 of accused Ashok Kumar Sehgal. He has also proved the pay in slips Ex.PW24/D3 to Ex.PW24/D10 (Except Ex.PW24/D6), through which different CBI Vs. Ashok Kr. Sehgal etc., (CC254/07) pg 19 of 87 Special Judge, CBI01, Central, Delhi 20 cheques were deposited in the said account, for clearance. He has further proved the cheques Ex.PW24/E1 to Ex.PW24/E6, of his bank, through which accused Ashok Kumar Sehgal had withdrawn the money from his account.
xxxv) PW35 Dr. B. A. Vaid, GEQD, Shimla. This witness has examined the questioned documents and has compared the same with the specimen signatures and writings of accused Ashok Kr. Sehgal and Sri Kant Singh. This witness has proved the letter of CBI, dated 02.01.1992 as Ex.PW32/A and his opinion as ExPW24/H. This witness has also proved the four sheets containing reasons for his opinion as ExPW32/B. This witness has also deposed that the reports, along with the documents were returned back to the CBI vide letter No. CX3/92 and CX4/92, dated 29.01.1992 and 13.03.1992, ExPW24/G. B. Witnesses examined after 17.05.2010
i) New PW1 Sh. B.L. Sood, who was posted as Asstt. Superintendent Aircraft Engineer in Palam Airport. He identified CBI Vs. Ashok Kr. Sehgal etc., (CC254/07) pg 20 of 87 Special Judge, CBI01, Central, Delhi 21 his signatures, as introducer, on account opening form Ex.NewPW1/A, pertaining to saving bank account No. 7490 of accused Sri Kant Singh, in Indian Bank, Janak Puri, New Delhi.
ii) New PW2 Sh. Santokh Singh, who was posted as Asstt. Finance Manager in Indian Airlines, Finance Department, Safdarjang Airport, New Delhi, in September 1991. He has identified his signature on the cheques, bearing No. 471179, dated 05.01.1990 for Rs.3,200/; cheque No. 473213, dated 13.03.1990, for Rs.3,800/; cheque No. 475223, dated 05.06.1990 for Rs.3,990.10p.; cheque No. 476976, dated 01.06.1990 for Rs.4,110/; and cheque No. 470482, dated 19.12.1989 for Rs.2,803/. He has also identified his signatures on the cheque voucher No. 8081, dated 04.01.1989 for Rs. 3,200/; cheque voucher No.1830, dated 05.03.1990 for Rs. 3,800/; cheque voucher No.1438, dated 29.05.1990 for Rs. 3,990.10p; cheque voucher No.1436, dated 29.05.1990 for Rs. 4,110/; and cheque voucher No.8077, dated 19.12.1989 for Rs. 2803/. He has proved the cheques as Ex.NewPW2/A1 to CBI Vs. Ashok Kr. Sehgal etc., (CC254/07) pg 21 of 87 Special Judge, CBI01, Central, Delhi 22 Ex.NewPW2/A5 and vouchers as Ex.NewPW2/B1 to NewPW2/B5. He has further deposed that he was one of the signatories of the aforesaid cheques and vouchers.
iii) New PW3 Sunil Mathur, Accounts Assistant, Indian Airlines, Palam. This witness has proved the statement of payment under CFMS sheet No. 901, dated 21.05.90, as Ex.NewPW3/A. He has also proved the entry in miscellaneous payment register as Ex.NewPW3/B. He has further proved the statement of payment sheet under CFMS, No. 518, dated 14.12.1989, as Ex.NewPW3/D. He has also deposed that cheque forwarding voucher No. 8087, Ex.NewPW2/B5 has been prepared by accused Ashok Kumar. He has further deposed that the cheque forwarding voucher has been prepared on the basis of CFMS sheet No. 485, Ex.NewPW3/3, which was also prepared by accused Ashok Kumar. He has further deposed that cheque forwarding voucher No. 8081, Ex.NewPW2/B3, was also prepared by accused Ashok Kumar.
iv) New PW4 Sh. Om Prakash Sharma, who was working as CBI Vs. Ashok Kr. Sehgal etc., (CC254/07) pg 22 of 87 Special Judge, CBI01, Central, Delhi 23 Accounts Officer at Palam Airport in the year 1986. This witness has proved the cheque forwarding memos for issuing the cheques of Rs.3990.10p. & Rs.4,110/, in favour of employees S.K. Singh (Staff No. 313998) and employee Srikant Singh (Staff No.321826) as Ex.NewPW1/C2 & Ex.NewPW1/C1, respectively.
Documents Ex.NewPW2/B2, Ex.NewPW2/B3 and Ex.NewPW2/B4 are the carbon copies of Ex.New PW1/C2, for giving the additional information, relating to accounts expenses under CFMS / Staff Welfare Account. Likewise, Ex.NewPW2/B1 and Ex.PW2/B5 are the carbon copy of Ex.NewPW1/C1, which bear his signatures.
v) New PW5 Sh. Shashi Kant Oberoi, who was working as Sr. Accounts Assistant, Indian Airlines at Palam Airport, Delhi, during the year 198990, who has deposed about the procedure to be adopted for preparation of cheques regarding CFMS claims and its delivery to the concerned employees. He has prepared the cheque forwarding voucher No. 1830, dated 05.03.90 for Rs. 3800/, in favour of employee S.K. Singh (Staff No. 313998) and CBI Vs. Ashok Kr. Sehgal etc., (CC254/07) pg 23 of 87 Special Judge, CBI01, Central, Delhi 24 has proved this voucher as Ex.NewPW2/B4.
vi) New PW6 Vakil Shah, who was posted as Sr. Superintendent in Medical CFMS Cell at Palam Airport in the month of October, 1991. He has deposed that the statement of payment to employees under CFMS sheets No.901, Ex.NewPW3/A, No. 485 Ex.NewPW3/C, No.518 Ex.NewPW3/D and No. 680 Ex.NewPW6/A, were not bearing the signatures of any office staff, posted in his office, during the relevant period. This witness has further deposed that the specimen handwriting and signatures of accused Ashok Kr. Sehgal, marked as S6 to S10, Ex.NewPW6/D1 to Ex.NewPW6/D5 and marked as S52 to S82 Ex.NewPW6/E1 to Ex.NewPW6/E37, were taken, in his presence, in the CBI office.
vii) New PW7 Sh. Patel Ram Parashar, who was posted as Chief Pharmacist at the dispensary at Palam Airport, New Delhi, at the relevant time and was processing the CFMS bills. He has deposed about the procedure for settlement of CFMS claims.
viii) New PW8 Raghvir Singh Narwal, who was posted as Sr. CBI Vs. Ashok Kr. Sehgal etc., (CC254/07) pg 24 of 87 Special Judge, CBI01, Central, Delhi 25 Chief Pharmacist in Indian Airlines, Medical Section at Palam Airport, during the relevant period and has deposed that CFMS claims were processed and scrutinized in CFMS Cell office branch, as per the entitlement of the employees.
ix) New PW9 Rajvir Singh, who was posted as Office Superintendent in Medical Section at Palam Ariport, during the relevant period. This witness has stated that the CFMS payment sheets Ex.NewPW3/D, Ex.NewPW3/C, Ex.NewPW6/A, Ex.NewPW3/A and Ex.New PW9/A, were never entered in the payment sheets register. He has also deposed that these claims were not processed by the employees, named in these sheets. The front page of the CFMS claim sheets register has been proved as Ex.NewPW9/B.
x) New PW10 Sh. Subhash Chander, who was posted as Dy. Finance Manager at Palam Airport, during the relevant period. He had made scrutiny of the past record, on the information of fraudulent payments under CFMS sheet and found that a large number of CFMS sheets were prepared fraudulently and sent to CBI Vs. Ashok Kr. Sehgal etc., (CC254/07) pg 25 of 87 Special Judge, CBI01, Central, Delhi 26 the Finance Department for processing the payments. After scrutiny, he prepared the detailed reports Ex.NewPW10/A and New Ex.PW.10/B respectively.
xi) New PW11 Sh. Subhash Chander Yadav, Superintendent of Police, CBI, who is the Investigating Officer of the present case.
13. After completion of the prosecution evidence, statements of accused persons, u/s 313 Cr.PC were recorded, wherein, they have denied all the incriminating evidence against them and have stated that they are innocent and have been falsely implicated in this case. It has been stated by the accused Ashok Kumar Sehgal that he has not committed any offence as alleged. He further stated that he has been falsely implicated in the present case and the case has not been properly investigated by the I.O. He further stated that he had told the investigating officer about the fact that his duty timings were from 9.15 am to 5.20 pm and he could not have left his office before 2.00 pm. The working CBI Vs. Ashok Kr. Sehgal etc., (CC254/07) pg 26 of 87 Special Judge, CBI01, Central, Delhi 27 hours of the bank in question were from 10.00 am to 2.00 pm. Moreover, the distance between Palam Airport, Safdarjung Airport and Khan Market are about 20 kms and they were not allowed to avail leave of first half of the working day as a matter of rule. Since it was security prone area, so employees upto GradeIX were required to punch their respective cards for getting in/out. However, he has not led any evidence in his defence, despite opportunity.
14. Accused Srikant Singh has also stated that he has been falsely implicated by his colleagues and superiors. He has examined himself as DW1 in his defence, u/s. 315 Cr.P.C., wherein, he has stated that during his tenure in Indian Airlines, no departmental inquiry was ever initiated against him and he was getting timely promotions, due to his excellent performance. He further stated that in the year 1985, he opened a savings bank account bearing No. 7490 with Indian Bank, Janak Puri, New Delhi. He has further stated that one Sh. S.K. Singh (Suresh CBI Vs. Ashok Kr. Sehgal etc., (CC254/07) pg 27 of 87 Special Judge, CBI01, Central, Delhi 28 Kumar Singh) was also working in the Engineering Department, as an Assistant Engineering Manager, with different staff number. He has further deposed that he had not filed any CFMS claim application and he had not received any cheque with respect to CFMS claims from the accounts department and the cheques Ex.PW2/A1, Ex.PW2/A2, Ex.PW2/A3, Ex.PW2/A4 & Ex.PW2/A5, were never deposited by him and even the vouchers Ex.PW1/B1, Ex.PW1/B2, Ex.PW1/B3, Ex.PW1/B4 & Ex.PW1/B5, were not filled up by him. He has further deposed that had he received the above cheques, the department would have got the acknowledgement receipt from him, on the cheque voucher. He has further deposed that he has no knowledge as to who had received the cheque on his behalf or deposited the same in his bank as he seldom used to update his statement of account and this fact remained unknown to him and it came to his knowledge during the investigations of the present case. He has further deposed that he used to keep unsigned cheque book in the office drawer of his table, which was unlocked and someone CBI Vs. Ashok Kr. Sehgal etc., (CC254/07) pg 28 of 87 Special Judge, CBI01, Central, Delhi 29 had taken out cheque leaf bearing No. 427758 Ex.PW8/A of Indian Bank. He has neither signed this cheque nor has given it to anyone. He has further deposed that the body portion of the cheque has not been filled up by him and this fact also came to his knowledge during investigations of the case. He has further deposed that the cheque voucher Ex.PW27/O has not been filled up by him and he has no knowledge as to who has filled the same. He has further deposed that the documents, which had been sent to handwriting expert has not given any positive report with respect to his handwriting.
15. After completion of trial, final arguments were addressed by Sh. Praneet Sharma, Ld. PP for the CBI, Sh. Sumit Rajput, Advocate, for accused Ashok Kumar Sehgal and Shri Umesh Sinha, Advocate, for accused Sri Kant Singh.
Arguments on behalf of the Prosecution
16. It has been argued by the Ld. PP for the CBI that the CBI Vs. Ashok Kr. Sehgal etc., (CC254/07) pg 29 of 87 Special Judge, CBI01, Central, Delhi 30 accused Ashok Kumar Sehgal was working as a senior accounts officer in Indian Airlines and Indian Airlines was having a CFM scheme for reimbursement of the claims of the medical bills, of its employees and when an employee makes an application to the medical section of Indian Airlines, for claim of his medical bill, regarding his treatment, the same is processed and scrutinized by the medical officers of the Indian Airlines and then, a 'statement of payment' is sent to the accounts section, for preparation of the vouchers. Thereafter, on the basis of the 'statement of payment', a 'chequeforwarding voucher' is prepared in the accounts section and thereafter it is forwarded to the payment section for preparation of the cheque, in the name of the concerned employee and thereafter, the cheque is released to the concerned employee.
17. He has further argued that in the present case, cheque No. 470482, dated 19.12.1989 for Rs.2803/ Ex.PW.5/E1 (Ex.NewPW2/A5); Cheque No. 471179, dated 05.01.1990 for Rs. CBI Vs. Ashok Kr. Sehgal etc., (CC254/07) pg 30 of 87 Special Judge, CBI01, Central, Delhi 31 3200/ Ex.PW.5/E2 (Ex.NewPW2/A1); Cheque No. 473213, dated 13.03.1990 for Rs.3800/ Ex.PW.5/E3 (Ex.NewPW2/A2); Cheque No. 476976, dated 01.06.1990 for Rs.4110/, Ex.PW. 5/E4 (Ex.NewPW2/A4) and Cheque No. 475223, dated 05.06.1990 for Rs.3990.10p Ex.PW.5/E5 (Ex.NewPW2/A3), were prepared in the name of the accused Srikant Singh (S.K. Singh), on the basis of the "statements of payment" to employees and the cheques were duly received by accused Ashok Kumar, on behalf of accused Srikant Singh and after receiving the cheques, the accused Ashok Kumar, in conspiracy with co accused Sri Kant Singh, deposited these cheques, in the savings bank account No. 7490 of accused Sri Kant Singh, at Janak Puri Branch of Indian Bank, New Delhi and these cheques were duly credited in the account of accused Srikant Singh. Thereafter, the accused Srikant Singh, in conspiracy with accused Ashok Kumar Sehgal, issued cheque No. 427758, dated 20.06.1990, Ex.PW8/F, for Rs.8100/, in favour of accused Ashok Kumar Sehgal and the said cheque was also duly credited in his savings bank account CBI Vs. Ashok Kr. Sehgal etc., (CC254/07) pg 31 of 87 Special Judge, CBI01, Central, Delhi 32 No. 4645 at Central Bank of India, Khan Market, New Delhi.
18. The Ld. PP for the CBI has also argued that the CFSL report Ex.PW24/H, has proved that the accused Ashok Kumar @ Ashok Kumar Sehgal has forged the "statements of payments to employees under CFMS", Ex.PW14/B (Ex.NewPW3/D), Ex.PW14/D (Ex.NewPW3/C) and cheque release vouchers Ex.NewPW2/B1,Ex.NewPW2/B2,Ex.NewPW2/B3,Ex.NewPW2/ B4 and Ex.NewPW2/B5 and has also received the cheques from the department, on behalf of coaccused Sri Kant Singh, by forging his signatures on the cheque release voucher Ex.NewPW1/C1.
19. Ld. PP for the CBI has further argued that the Investigating Officer had seized the various documents, during the investigation and the same have been placed on record and during the investigations, the IO also obtained the specimen writings and signatures of both the accused persons and the same were sent CBI Vs. Ashok Kr. Sehgal etc., (CC254/07) pg 32 of 87 Special Judge, CBI01, Central, Delhi 33 for expert opinion, to CFSL and the CFSL report has corroborated the prosecution case. He has further argued that the prosecution has succeeded in establishing on record that the aforesaid five cheques of false CFMS claims were duly deposited in the account of accused Srikant Singh and were duly credited on various dates. Thereafter, the accused Srikant Singh issued a cheque for Rs.8100/ in favour of accused Ashok Kumar, vide cheque Ex.PW8/F and the same was also deposited in the savings bank account No. 4645 of accused Ashok Kumar Sehgal, at Central Bank of India, Khan Market, New Delhi, vide deposit slip, Ex.PW27/D and the cheque was duly credited to his account. All these circumstances clearly indicate that both the accused have connived together and have shared the illgotten money.
20. Ld. PP for the CBI has further argued that the circumstances, under which the accused Srikant Singh had issued the cheque for Rs.8100/, in favour of coaccused Ashok Kumar Sehgal, is to be explained by the accused persons themselves, as per the CBI Vs. Ashok Kr. Sehgal etc., (CC254/07) pg 33 of 87 Special Judge, CBI01, Central, Delhi 34 provisions of Section 106 of the Indian Evidence Act, 1872. He has prayed that the prosecution has successfully proved the charges for the offences punishable u/s 120B r/w Sec.420, 468,471 IPC and Section 13 (1)(d) punishable under Section 13 (2) of the Prevention of Corruption Act, 1988, against both the accused persons and, therefore, both of them, be held guilty and convicted, for the said offences.
Arguments on behalf of accused Ashok Kumar Sehgal
21. It has been argued by Shri Sumit Rajput, Advocate, for accused Ashok Kumar Sehgal that there is no evidence on record to prove any conspiracy between the accused persons. He has argued that the accused Ashok Kumar Sehgal has not prepared any cheque and has not deposited any of the cheques in the account of coaccused Sri Kant Singh. The coaccused Sri Kant Singh has also denied the issuance of any cheque in favour of accused Ashok Kumar Sehgal and therefore, the chain of events, to prove the conspiracy between the two accused persons is CBI Vs. Ashok Kr. Sehgal etc., (CC254/07) pg 34 of 87 Special Judge, CBI01, Central, Delhi 35 broken at several places. He has further argued that the accused Ashok Kumar Sehgal has not induced any person and has not caused any wrongful loss to any person and no evidence has come on record to make out even the offences u/s. 420/468/471 IPC against him. He has further argued that it is the duty of the prosecution to prove its case beyond a shadow of doubt and the burden of proof of the prosecution case cannot be shifted to the accused persons. He has also argued that the prosecution has miserably failed to prove any case against the accused, by leading cogent and reliable evidence and, therefore, the accused may be acquitted for the offences charged against him. Arguments on behalf of accused Srikant Singh
22. Shri Umesh Sinha, Advocate, for accused Srikant Singh has argued that accused Srikant Singh had never applied for any CFMS claim and he had neither prepared any voucher nor any other document, on the basis of which, the cheques Ex.NewPW2/A1 to Ex.NewPW2/A5, were prepared. He has CBI Vs. Ashok Kr. Sehgal etc., (CC254/07) pg 35 of 87 Special Judge, CBI01, Central, Delhi 36 also argued that the said cheques were never received by the accused Srikant Singh and the same were never deposited by him, in his account. He has further argued that even the payin slips do not bear the signatures or the handwritings of accused Srikant Singh and, therefore, there is no evidence on record to prove any conspiracy, between accused Srikant Singh and co accused Ashok Kumar Sehgal.
23. The Ld. defence counsel has further argued that the accused Srikant Singh was having no knowledge about the deposition of the forged cheques in his savings account and he came to know about the deposition of these cheques only after the registration of the FIR. He has further argued that the accused had intimated his department, orally, about the deposition of these five cheques and also offered to make the payment of the cheque amount to the department, but, the same was not accepted by his department.
CBI Vs. Ashok Kr. Sehgal etc., (CC254/07) pg 36 of 87 Special Judge, CBI01, Central, Delhi 37
24. The Ld. defence counsel has also argued that the cheque for Rs.8100/ Ex.PW8/F, was never issued by accused Srikant Singh in favour of coaccused Ashok Kumar Sehgal and the same does not bear his handwriting or the signatures. It is also argued that the cheque Ex.PW8/F was never sent to the CFSL for the opinion of the handwriting expert regarding the handwriting and the signatures of accused Srikant Singh, despite of the fact that the specimen signatures of accused Srikant Singh were also obtained by the IO during the investigations. He has further argued that the cheque leaf bearing No.427758, was missing from his drawer and somebody had forged his signatures on this cheque and had misused the same for issuing this cheque for Rs.8100/ in favour of coaccused Ashok Kumar. The Ld. defence counsel has also objected to the manner in which this cheque had been cleared by his Banker, in the account of coaccused Ashok Kumar Sehgal, despite of the fact that his signatures on this cheque were not tallying with his signatures on the specimen signatures card. He has argued that it was the fault of the bank employees, due to CBI Vs. Ashok Kr. Sehgal etc., (CC254/07) pg 37 of 87 Special Judge, CBI01, Central, Delhi 38 which the cheque of Rs.8100/ was deposited and cleared in the account of coaccused Ashok Kumar Sehgal. He has further argued that the provisions of Section 106 of Indian Evidence Act, are not applicable to the facts and circumstances of the present case.
25. The Ld. defence counsel has also argued that there was another employee in Indian Airlines, at the relevant time, with the name of S.K. Singh, bearing employee No. 313998, who was working as Assistant Engineering Manager, whereas, the accused Srikant Singh was working as Aircraft Engineer and was having employee No. 321826 and the cheque Ex.NewPW2/B2 for Rs.3990/10, cheque Ex.NewPW2/B3 for Rs.3200/ and cheque Ex.NewPW2/B4 for Rs.3800/, were prepared in the name of S.K. Singh, with employee No. 313998. He has further argued that these cheques should have been released to S.K. Singh with employee No. 313998 and should have been credited to his account. But, somehow the aforesaid cheques were CBI Vs. Ashok Kr. Sehgal etc., (CC254/07) pg 38 of 87 Special Judge, CBI01, Central, Delhi 39 deposited by some unknown person in the account of accused Srikant Singh and the wrong credit of these cheques, in his account, was duly intimated by the accused to his employer, but, his employer had not accepted the cheque amount from him.
26. The Ld. defence counsel has further argued that the circumstances of the case clearly indicate that some unknown person had deposited the disputed cheques in the account of the accused Srikant Singh, without his knowledge, and he came to know about the wrong credit of the cheque amount in his savings account only after registration of the FIR and, therefore, there was no fault or culpability, which can be attributed to accused Srikant Singh.
27. He has further argued that the prosecution has miserably failed to prove any conspiracy between accused Srikant Singh and coaccused Ashok Kumar Sehgal, by leading reliable evidence and therefore, the accused Srikant Singh be acquitted CBI Vs. Ashok Kr. Sehgal etc., (CC254/07) pg 39 of 87 Special Judge, CBI01, Central, Delhi 40 for the various offences charged against him.
OBSERVATIONS
28. I have carefully perused the case file and I have given my considered thoughts to the arguments addressed by the Ld. PP for the CBI and the Ld. defence counsels.
29. Perusal of the record shows that NewPW10 (PW18), Sh.
Subhash Chander, has deposed that in the year 1990, he was posted as Dy. Finance Manger at Palam Airport, New Delhi, and was dealing with different sections of the office, including the Medical Claim Bills in the Bill Passing Section. He has further deposed that during the year 1990, it was brought to his notice that in some cases, fraudulent payments have been made under the CFMS Sheets. Thereafter, he made scrutiny of past record and found that there were quite a number of cases, where the sheets were prepared fraudulently and were sent to the finance department for processing the payment. After scrutiny of the CBI Vs. Ashok Kr. Sehgal etc., (CC254/07) pg 40 of 87 Special Judge, CBI01, Central, Delhi 41 record, he prepared the detailed report Ex.NewPW10/A. This witness has further deposed that during scrutiny of record, it was also brought to his notice that one fake sheet, regarding CFMS claim, regarding hospitalization, was received in the Bill Passing & Payment Section and the dealing staff Sh. S.K. Oberoi had doubts that such sheet was not signed by the Medical Officer and thereafter, the medical section, after verifying the sheet, told that the sheet was not prepared by them and was never got signed by the medical officer. The said sheet was not passed for payment and was handed over to the vigilance officer, for further investigations. This witness has further stated that he made the scrutiny of the past records and prepared another detailed report Ex.NewPW10/B.
30. Perusal of the record further shows that the reports Ex.NewPW10/A and Ex.NewPW10/B, have mentioned the names of the persons, to whom the fraudulent payments have been made against the false CFMS claims. Perusal of these reports CBI Vs. Ashok Kr. Sehgal etc., (CC254/07) pg 41 of 87 Special Judge, CBI01, Central, Delhi 42 further indicate that a fraudulent payment of a total amount of Rs. 17,903.10p. was made to accused S.K. Singh, vide five cheques bearing No. 470482, 471179, 473213, 476976 & 476223, dated 19.12.89, 05.01.90, 13.03.90, 01.06.90 & 05.06.90, respectively, for a sum of Rs.2803/, Rs.3200/, Rs.3800/, Rs.4110/ & Rs. 3990.10p., respectively, and the same were credited in his savings bank account on various dates, as mentioned in the report Ex.NewPW10/A.
31. During the trial, the prosecution has examined several witnesses, who have explained the procedure for the settlement of CFMS claims in Indian Airlines. PW5 Smt. Veena Sethi, who was working as Accounts Officer, in Cash & Bank Section, Northern Region, Thapar House, Indian Airlines, on 11.09.91 has deposed that for making CFMS payments to the employees of Palam Airport, her cash & Bank Section used to receive statements of payments along with vouchers from Palam Airport, which were processed by the staff in the Section and cheques CBI Vs. Ashok Kr. Sehgal etc., (CC254/07) pg 42 of 87 Special Judge, CBI01, Central, Delhi 43 were typed out and checked and verified and put up for signatures, to the Bank Signatories. Later on, the copy of the voucher along with the cheque processed, was sent to Palam Airport for handing over the same to the staff against signatures. She had further deposed that Sh. Santokh Singh, Sh. A.N. Vij, Sh. O.D. Sharma, Sh. A.K. Goel, Sh. N.K. Jain and Sh. Krishan Kumar, were the various signatories of the various cheques. She had further deposed that the cheque No. 470482, dated 19.12.89 Ex.PW5/E1 (Ex.NewPW2/A5), was signed by Sh. A.N. Vij and Sanotkh Singh, cheque No. 471179 dated 05.01.90, Ex.PW5/E2 (Ex.NewPW2/A1), has been signed by Sh. Santokh Singh and Sh. A.K. Goel, cheque No.473213 dated 13.3.90 Ex.PW5/E2 (Ex.NewPW2/A2) has been signed by Sh. Santokh Singh and Sh. N.K. Jain, cheque No. 476976, dated 01.06.90 Ex.PW5/E4 (Ex.NewPW2/A4) has been signed by Sh. Santokh Singh and cheque No. 475223, dated 05.06.90, Ex.PW5/E5 (Ex.NewPW2/A3) has been signed by Sh. Santokh Singh and Krishan Kumar as authorized signatories. NewPW2 Sh. Santokh CBI Vs. Ashok Kr. Sehgal etc., (CC254/07) pg 43 of 87 Special Judge, CBI01, Central, Delhi 44 Singh has also deposed that aforesaid five cheques bear his signatures.
32. NewPW3 Sh. Sunil Mathur, who was Sr. account assistant, in the year 1990, has deposed that on receipt of statements of payments to employees, under CFMS, the cheque forwarding vouchers were prepared and the same were sent to Safdarjung Airport, for making the payments through cheque and a cheque against the payment is made if the payment is more than Rs. 2500/. This witness has deposed that cheque forwarding vouchers bearing No. 1436 & 1438, both dated 29.05.90, Ex.NewPW2/B1 & Ex.NewPW2/B2, respectively, were both prepared by him in the name of S.K. Singh, on the basis of CFMS sheet No. 901, dated 21.05.90 Ex.NewPW3/A. This witness has further deposed that the corresponding entries were made in miscellaneous payment register, at page156, Ex.NewPW3/B. Thereafter, the cheque forwarding vouchers were sent to the Safdarjung office, for payment. He has further stated that the CBI Vs. Ashok Kr. Sehgal etc., (CC254/07) pg 44 of 87 Special Judge, CBI01, Central, Delhi 45 cheque forwarding vouchers bearing No. 8081, dated 04.01.89 for Rs.3200/, Ex.NewPW2/B3 and voucher No. 8087, dated 19.12.89 for Rs.2803 Ex.NewPW2/B5, both favouring Sri Kant Singh, were prepared by accused Ashok Kumar in his own handwriting and both these vouchers also bear his initials. He has also stated that these vouchers were prepared on the basis of CFMS sheets No. 518, dated 14.12.89, Ex.NewPW3/D and CFMS sheet No. 485, dated 14.12.89, Ex.NewPW3/C, respectively. He has further deposed that no entry has been made in the miscellaneous payment register, in this regard.
33. NewPW4 Om Prakash Sharma, who was working as accounts officer at Palam Airport, during the relevant period, has also deposed that employees of Indian Airlines submit their Contributory Family Medical Scheme claims bills to the medical department, where the same were processed and passed by the medical officer, for payment. Medical section used to prepare the 'statements of payments to the employees', in prescribed CBI Vs. Ashok Kr. Sehgal etc., (CC254/07) pg 45 of 87 Special Judge, CBI01, Central, Delhi 46 proforma and get it signed by the medical officer and then, it used to come in the accounts section (Bill Passing) where the concerned staff used to scrutinize whether the payment was to be made in cash or by cheque. If the claim amount was less than Rs. 2500/ then the payment was to be made in cash, otherwise, by cheque. Thereafter, through a forwarding memo, the same in the matter relating to cheque, was sent to Safdarjung Airport (Regional Head Office), where the accounts department used to prepare the cheque and send it to him along with the voucher for delivery to the individual concerned employee. This witness has identified his signatures on the cheque forwarding memo Ex.NewPW1/C1, in the name of 'Sri Kant Singh' and on the cheque forwarding memo Ex.NewPW1/C2, in favour of S.K. Singh (employee No. 313998).
34. NewPW5 Shashi Kant Oberoi, who was posted as Sr. accounts Assistant, in Indian Airlines, Palam Airport, in the year 198990, has also deposed in a similar fashion. He has also CBI Vs. Ashok Kr. Sehgal etc., (CC254/07) pg 46 of 87 Special Judge, CBI01, Central, Delhi 47 stated that cheque forwarding memo No. 1830, dated 05.03.90, for Rs.3800, in favour of S.K. Singh (Staff No. 313998) Ex.NewPW2/B4, was prepared by him in his handwriting. He has also stated that the entry was also made in this regard, by him in miscellaneous payment register at page47 on 03.03.90, vide entry Ex.NewPW5/B (Ex.PW20/D).
35. Perusal of the record further shows that prosecution has also examined various witnesses from the medical section of Indian Airlines. PW21 Dr. Ganesh Shankar Pandey has deposed that during the year 198990, he was posted at Palam Airport as Medical officer, and all the doctors posted there were empowered to pass the medical claims preferred by the employees of the Indian Airlines. All the medical claims were processed and passed in his CFMS Section. He has also deposed that every sheet pertaining to CFMS sheets were entered in the register, 'CFMS hospital claim register', maintained by the staff. The said register has been proved on record as Ex.PW14/A CBI Vs. Ashok Kr. Sehgal etc., (CC254/07) pg 47 of 87 Special Judge, CBI01, Central, Delhi 48 (Ex.NewPW6/B). He has also deposed that the register does not bear the entry of claim No. 680, dated 26.02.90, on page49 of this register. The said page is Ex.PW21/A. He has further deposed that the CFMS sheets Ex.PW5/A, Ex.PW14/B, Ex.PW4/B & Ex. PW14/D, do not bear the signatures of Dr. P. Sodhani. The CFSL report Ex.PW24/H has corroborated the fact that the signatures of Dr. P. Sodhani were also forged by the accused Ashok Kumar. In his crossexamination, he has deposed that if CFMS claim sheets are not entered in the claim medical register of the hospital, Ex.PW14/A, it shows that no claim was preferred by the employee concerned.
36. NewPW7 Sh. Patel Ram Parashar, the Chief Pharmacist in the dispensary at Palam Airport, New Delhi, has deposed that he was handling the dispensing and processing of the CFMS bills and on receipt of the CFMS bills from the concerned employees, the same are entered in two registers, namely, hospital claim register and other register and the same were processed by the CBI Vs. Ashok Kr. Sehgal etc., (CC254/07) pg 48 of 87 Special Judge, CBI01, Central, Delhi 49 Pharmacist. Thereafter, the registration numbers were given to the respective bills and the pharmacist was to ensure that the required documents were attached with the medical claims along with the prescriptions and other documents. He was also required to ensure the genuineness of the documents, by tallying with each other, and thereafter the bills were handed over to the Office Assistants/ Superintendents for processing. The office assistants used to make entry in medical claim file of every claimant, to have a check of his claims and limits, diseases etc. Thereafter, the office assistants used to put up the claims bills before the Medical Officer, who used to check the genuineness of the bills and kinds of diseases, for which the bills are permissible as per rules. Thereafter, claim sheets were prepared by office assistants, which includes name of employees, staff members, claim number, amount claimed & amount passed. Claim sheets were signed by the typist, bearing their name in them. Office Assistants used to check the claimed bills and checked and signed by the doctor. Thereafter, the claim sheets/ payment CBI Vs. Ashok Kr. Sehgal etc., (CC254/07) pg 49 of 87 Special Judge, CBI01, Central, Delhi 50 sheets were checked and signed by the doctor and three copies of the payment sheets, out of five, were sent to accounts / finance department and one copy of the payment sheet was attached with the master file of the office and one copy was used to be attached with the bill and thereafter, the finance department used to pay, as per order.
37. NewPW8 Raghbir Singh Narwal, who was Sr. Chief Pharmacist, at Medical Section of Indian Airlines at Palam Airport, New Delhi, has also deposed in a similar fashion. In addition, he has also deposed that Dr. P. Sodhani was also authorized to pass CFMS claims, as he was the Medical Officer, at that time. He has further stated that Mrs. Beena, Office Assistant and Mrs. Meera Bhatia, typist, were making entries in the claim register and the final payment sheets were prepared by them and finally passed by the Medical Officer. He has further deposed that on 17.10.1991, he along with Dr. Sodhani, Mr. Rajbir Singh, Office Superintendent and Ms. Beena, visited the CBI office, where CBI Vs. Ashok Kr. Sehgal etc., (CC254/07) pg 50 of 87 Special Judge, CBI01, Central, Delhi 51 specimen signatures of Dr. P. Sodhani and Ms. Beena were taken. This witness has identified his signatures on specimen signature sheets of Dr. P. Sodhani and Ms. Beena, Ex.NewPW8/B1 to Ex.NewPW8/B5 and Ex.NewPW8/A1 to Ex.NewPW8/A5.
38. Perusal of the record and the reports Ex.NewPW10/A & Ex.NewPW10/B and the CFMS sheets Ex.PW4/B, Ex.PW5/A, Ex.PW14/B, Ex.PW14/D and cheque forwarding vouchers, indicates that fraudulent claims of Rs.2803/, Rs.3200/, Rs. 3800/, Rs.4110/ and Rs.3990.10p., totalling Rs.17903.10p., were passed in favour of accused Sri Kant Singh. There is no document on record which indicates that accused Sri Kant Singh, has preferred any such CFMS claim. It has also come on record that in pursuance to these CFMS sheets and vouchers, cheque No.470482, dated 19.12.89, for Rs.2803/, Ex.PW5/E1 (Ex.NewPW2/A5), cheque No. 471179, dated 05.01.90, for Rs. 3200/, Ex.PW5/E2 (Ex.NewPW2/A1), cheque No. 473213, CBI Vs. Ashok Kr. Sehgal etc., (CC254/07) pg 51 of 87 Special Judge, CBI01, Central, Delhi 52 dated 13.03.90, for Rs.3800/ Ex.PW5/E3 (Ex.NewPW2/A2), cheque No. 476976, dated 01.06.90 for Rs.4410/ Ex.PW5/E4 (Ex.NewPW2/A4) and cheque No. 475223, dated 05.06.90, for Rs.3990.10p., Ex.PW5/E5 (Ex.NewPW2/A3), were prepared in the name of accused Sri Kant Singh (S.K. Singh) and the same were duly received by accused Ashok Kumar Sehgal, on his behalf, by forging his signatures, at the time of receiving these cheques. The cheque release voucher Ex.NewPW1/C1, dated 29.05.90, vide which the cheque No. 476976, dated 01.06.90, for Rs.4100/ was received by accused Ashok Kumar Sehgal, on behalf of accused Sri Kant Singh, bears the forged signatures of Sri Kant Singh, on its back side, at point Q56. The CFSL report, Ex.PW24/H, has proved that this signature was forged by Ashok Kumar Sehgal.
39. During the course of investigations, the IO Inspector S.C. Yadav, has taken the specimen handwritings and signatures of accused Ashok Kumar Sehgal, in the presence of witnesses CBI Vs. Ashok Kr. Sehgal etc., (CC254/07) pg 52 of 87 Special Judge, CBI01, Central, Delhi 53 A.K .Goel (PW28) and Vakil Shah (NewPW6) on 31.10.1991. The specimen signatures of coaccused Sri Kant Singh (S. K. Singh), were also taken on 11.11.91. NewPW16 Vakil Shah has categorically stated that he was called to the CBI office, where the specimen writings & signatures of accused Ashok Sehgal were taken in his presence. He has proved the sheets S6 to S10, containing specimen signatures of accused Ashok Kumar, as Ex.NewPW6/D1 to Ex.NewPW6/D5. This witness has also proved the specimen writings of accused Ashok Kumar contained in sheets S53 to S82 as Ex.NewPW6/E1 to Ex.NewPW6/E37.
40. During the investigations, the specimen signatures of accused Sri Kant Singh were also taken by the investigating officer, NewPW11 Subhash Chander Yadav, Superintendent of Police, on 11.11.1991, on the sheets marked as S93 to S97, which are ExPW26/A1 to Ex.PW26/A5(Ex.NewPW11/4 Collectively). PW26 Ashok Kumar Gupta, has also deposed that on 11.11.91, the specimen signatures of accused Sri Kant Singh ( CBI Vs. Ashok Kr. Sehgal etc., (CC254/07) pg 53 of 87 Special Judge, CBI01, Central, Delhi 54 S.K. Singh), were taken by the CBI Inspector in his presence.
41. The specimen signatures and handwritings of accused Sri Kant Singh as well as of accused Ashok Kumar Sehgal, were sent to GEQD, Shimla, for expert opinion and all the questioned documents and signatures were duly compared by PW35 Dr. B.A. Vaid, with the specimen signatures and handwritings of both the accused persons. PW35 Dr. B.A. Vaid has proved his opinions No. CX3/92 and CX4/92 dated 29.1.92, vide report Ex.PW24/H. The report Ex.PW24/H has established on record that the CFMS Sheets bearing Nos. 485, dated 14.12.1989 Ex.PW.14/D (NewEx.PW3/C) and CFMS Sheet No. 518, dated 02.01.1990 Ex.PW14/B (Ex.NewPW3/E), which bear the questioned signatures / handwriting of accused Ashok Kumar at points Q36, Q43, Q45 and at Q37, Q42 respectively, were prepared by accused Ashok Kumar. The report has also established on record that the cheque forwarding vouchers No. 8081, dated 04.01.1989 for Rs.3200/ Ex.NewPW2/B3, voucher No. 1436, CBI Vs. Ashok Kr. Sehgal etc., (CC254/07) pg 54 of 87 Special Judge, CBI01, Central, Delhi 55 dated 29.05.1990 for Rs.4110/ Ex.NewPW2/B1 and voucher No. 8087, dated 19.12.1989 for Rs.2803/, bearing questioned writings / signatures of accused Ashok Kumar, at points Q40, Q56 and Q39 respectively, were also prepared by him.
42. Furthermore, the report Ex.NewPW24/H has specifically mentioned that the questioned writings and signatures stamped and marked Q7 to Q34, Q36 to Q43, Q45, Q56 & S6 to S82 have been written by one and the same person. The voucher Ex.NewPW2/A bears the questioned signatures at point mark Q56, on its back. Therefore, the report Ex.NewPW24/H has established that accused Ashok Kumar Sehgal had forged this signature of coaccused Srikant Singh, while accepting the cheque on his behalf.
43. Perusal of the record further indicates that the five cheques, i.e. the cheque Ex.PW.5/E1 (Ex.NewPW2/A5), Ex.PW.5/E2 (Ex.NewPW2/A1), Ex.PW.5/E3 (Ex.NewPW2/A2), Ex.PW.5/E4 CBI Vs. Ashok Kr. Sehgal etc., (CC254/07) pg 55 of 87 Special Judge, CBI01, Central, Delhi 56 (Ex.NewPW2/A4) and Ex.PW.5/E5 (Ex.NewPW2/A3), were deposited in the savings bank account of accused Srikant Singh and the same were duly cleared. The accused Srikant Singh also issued a cheque for a sum of Rs.8110/, in the name of co accused Ashok Kumar Sehgal, bearing cheque No. 427758, dated 20.06.90 (Ex.PW.8/F). The said cheque was duly issued by accused Srikant Singh, under his signatures, and was duly credited in the account of coaccused Ashok Kumar.
44. During the trial PW8 Ravi Kumar Bajaj has proved the various documents pertaining to the savings bank account, in the name of accused Sri Kant Singh at Indian Bank, Janakpuri, New Delhi, with S.B. account No. 7490. He has proved the account opening form of S.B. A/c No. 7490, in the name of accused Sri Kant Singh, containing specimen signatures of Sri Kant Singh, as Ex.PW.8/B. He has also proved the fine payinslips as Ex.PW. 8/D1 to Ex.PW.8/D5. This witness has further deposed that the cheque Ex.PW.8/F for Rs.8110/ was issued from the account of CBI Vs. Ashok Kr. Sehgal etc., (CC254/07) pg 56 of 87 Special Judge, CBI01, Central, Delhi 57 accused Sri Kant Singh and was duly credited in the account of coaccused Ashok Kumar and the same is reflected in the statement of account of accused Ashok Kumar.
45. PW27 Mahender Kumar Kansal, the SubAccountant from Central Bank of India, Khan Market Branch, has also deposed that a sum of Rs.8100/ was deposited, on 23.06.1990, vide cheque No. 427758, dated 20.06.1990 Ex.PW.8/F, through pay inslip dated 21.06.1990, Ex.PW.23/D. The payinslip bears the handwriting of accused Ashok Kumar at point 'Q32' and the CFSL Report Ex.PW.2/H, has corroborated that this writing was of accused Ashok Kumar.
46. PW34 Manoj Kumar Sharma has also deposed that accused Ashok Kumar was having SB Account No. 4645 at Central Bank of India, Khan Market, New Delhi. The specimen signature card of the savings account of Ashok Kumar has been proved on record as Ex.PW24/B1. The payinslips for various cheques, CBI Vs. Ashok Kr. Sehgal etc., (CC254/07) pg 57 of 87 Special Judge, CBI01, Central, Delhi 58 deposited in the savings bank account of accused Ashok Kumar, have been placed on record as Ex.PW24/D3 to Ex.PW24/D10.
47. During the course of investigations, IO NewPW11 Subhash Chander Yadav, SP, had collected various documents from the Indian Airlines as well as from Indian Bank, Janakpuri, Delhi, and the Central Bank of India, Khan Market, Delhi. The various seizure memos have been proved by him as Ex.NewPW11/B, Ex.NewPW11/C, Ex.NewPW11/D & Ex.NewPW11/E. This witness has also proved the letter, dated 19.05.91, written to State Bank of India, as Ex.NewPW11/F. He has categorically stated that he had collected various documents vide aforesaid seizure memos. He has also deposed that he also seized the cheques Ex.NewPW2/A1 to Ex.NewPW2/A5. He has also stated that he also collected the cash vouchers, i.e., the cheque forwarding vouchers, Ex.NewPW2/B1 to Ex.NewPW2/B5. He has also deposed about seizure of the payinslips, Ex.NewPW1/B1 to Ex.NewPW1/B5. He has also deposed CBI Vs. Ashok Kr. Sehgal etc., (CC254/07) pg 58 of 87 Special Judge, CBI01, Central, Delhi 59 about collecting the internal inquiry report of NewPW10 Subhash Chander, Ex.NewPW10/A and Ex.NewPW10/B. He has also deposed that the specimen signatures and handwritings of Smt. Veena (PW5) and Dr. P. Sodhani, Ex.NewPW8/A1 to Ex.NewPW8/A5 and Ex.NewPW8/B1 to Ex.NewPW8/B5, were obtained by him, in the presence of NewPW8 Raghubir Singh Narwal (R.S. Narwal) and NewPW9 Rajvir Singh. He has further deposed that he obtained the specimen signatures and handwriting of accused Ashok Kumar Sehgal, mark S35 to S52 (Ex.NewPW11/G) and specimen signatures and handwriting of accused Sri Kant Singh, mark S93 to S97 (Ex.NewPW11/H). He has further deposed that all the questioned documents along with the specimen signatures and writings of the accused persons were sent by him to GEQD, Shimla, for comparison and opinion through forwarding letter of his S.P., Ex.NewPW11/J. He has further deposed that the opinion on the questioned documents and sanction for prosecution of the accused persons were obtained by him from competent authorities and thereafter, he CBI Vs. Ashok Kr. Sehgal etc., (CC254/07) pg 59 of 87 Special Judge, CBI01, Central, Delhi 60 filed the charge sheet in the court.
48. The evidence on record has established that the cheques Ex.PW5/E1 to Ex.PW5/E5 ( Ex.NewPW2/A1 to Ex.NewPW2/ A5), were got issued in the name of accused Sri Kant Singh (S.K. Singh), without any CFMS claims by him and the same were duly deposited in his savings bank account No. 7490 at Indian Bank, Janakpuri, New Delhi. It is also established on record that these cheques were duly credited in his account and thereafter, he issued cheque No.427758, Ex.PW8/F for a sum of Rs.8110/, dated 20.6.90 in favour of coaccused Ashok Kumar and the said cheque was also duly deposited by accused Ashok Kumar in his savings bank account at Central Bank of India, Khan Market, New Delhi. The amount of Rs.8110/ was duly credited to the account of accused Ashok Kumar.
49. During the arguments, the main contention of the Ld. defence counsel for accused Sri Kant Singh has remained that accused CBI Vs. Ashok Kr. Sehgal etc., (CC254/07) pg 60 of 87 Special Judge, CBI01, Central, Delhi 61 Sri Kant Singh has not forged any document and has not deposited any forged cheque in his SB Account and he has never issued any cheque in favour of coaccused Ashok Kumar Sehgal. He has argued that the accused Sri Kant Singh was totally ignorant about the transactions in his bank account, pertaining to these five cheques. He has also argued that the cheque Ex.PW8/F was not bearing the signatures of accused Sri Kant Singh and it has been wrongly cleared by the bank officials. But, I do not find any merit, in these submissions, as it is also admitted fact that the accused Sri Kant Singh (S.K. Singh) was having savings bank account No. 7490, at Indian Bank, Janakpuri, New Delhi and he was operating this account himself. During the trial, the specimen signatures card of this account, in the name of accused Sri Kant Singh (S.K. Singh) has been proved on record as Ex.PW8/B. Perusal of this specimen signatures card shows that the accused Sri Kant Singh had opened this account on 18.03.1985 and on 31.03.1990, he changed his specimen signatures. The specimen signatures on 18.03.1985 are at points CBI Vs. Ashok Kr. Sehgal etc., (CC254/07) pg 61 of 87 Special Judge, CBI01, Central, Delhi 62 B, C & D of this card. However, he changed his specimen signatures on 31.03.1990 and accordingly, his fresh specimen signatures were taken and an endorsement was made on the specimen signatures card on 31.03.1990 itself, in red pen & ink. When the fresh signatures, i.e., the specimen signatures, w.e.f., 31.03.90 are compared with his signatures on the cheque Ex.PW8/F, both the signatures appear to have been done by one and the same person. Even with the naked eyes, both signatures appear to be exactly the same. Therefore, it cannot be said that accused Sri Kant Singh was having no knowledge about these transactions, or he never issued cheque Ex.PW8/F, in favour of coaccused Ashok Kumar Sehgal. Even otherwise, as per section 106 of the Indian Evidence Act, 1872, it is for the accused persons to explain the circumstances under which the cheques Ex.NewPW2/A1 to Ex.NewPW2/A5 were credited in the savings account of accused Sri Kant Singh and thereafter, under what circumstances accused Sri Kant Singh issued a cheque for a sum of Rs.8110/, in the name of coaccused Ashok Kumar Sehgal. CBI Vs. Ashok Kr. Sehgal etc., (CC254/07) pg 62 of 87 Special Judge, CBI01, Central, Delhi 63 But, the accused persons have failed to discharge this burden.
50. It was held by the Hon'ble Supreme Court, in case titled as "Krishna Kumar vs. Union of India", reported as AIR 1959 Supreme Court 1390, as under :
9. It is not necessary or possible in every case to prove in what precise manner the accused person has dealt with or appropriated the goods of his master. The question is one of intention and not a matter of direct proof but giving a false account of what he has done with the goods received by him may be treated a strong circumstances against the accused person. In the case of a servant charged with misappropriating the goods of his master the elements of criminal offence of misappropriation will be established if the prosecution proves that the servant received the goods, that he was under a duty to account to his master and had not done so. If the failure to account was due to an accidental loss then the facts being within the servant's knowledge, it is for him to explain the loss. It is not the law of this country that the prosecution has to eliminate all possible defences or circumstances which may exonerate him. If these facts are within the knowledge of the accused then he has to prove them. Of course the prosecution has to establish CBI Vs. Ashok Kr. Sehgal etc., (CC254/07) pg 63 of 87 Special Judge, CBI01, Central, Delhi 64 a prima facie case in the first instance. It is not enough to establish facts which give rise to a suspicion and then by reason of S. 106 of the Evidence Act to throw the onus on him to prove his innocence. See Harries C.J. in Emperor vs. Santa Singh, AIR 1944 Lah 339 at p. 345. In the present case the appellant received the consignment of goods which came from Tatanagar. It is admitted that he removed them and it was found by the High Court that they never reached the Central Tractor Organization. He gave an explanation in court which has been found to be false. Before Mr. F.C. Gora he made a statement to the effect that he had lost the Railway Receipt and therefore had never got the delivery of the goods which was also false. In these circumstances, in our opinion, the court would be justified in concluding that he had dishonestly misappropriated the goods of the Central Tractor Organization. The giving of false explanation is an element which the Court can take into consideration (Emperor v. Chattur Bhuj, ILR 15 Pat 108 ; (AIR 1936 Pat 350). In Rex V. William (1836) 7 C and P 338 Coleridge J. charged the jury as follows :
"The circumstances of the prisoner having quitted her place, and gone off to Ireland, is evidence from which you may infer that she intended to appropriate the money : and if you think that she did so intend, she is guilty of embezzlement".
Again in Reg v. Lynch, (1854) 6 Cox CC 445, Moore J., CBI Vs. Ashok Kr. Sehgal etc., (CC254/07) pg 64 of 87 Special Judge, CBI01, Central, Delhi 65 said :
"You have further the fact that, after getting the money, the prisoner absconded and did not come back till he was in custody. You may infer that he intended to appropriate this money, and if so, he is guilty of embezzlement".
(emphasis supplied by me)
51. It was held by the Hon'ble Allahabad High Court, in case titled as "Nilamber vs. State", reported as AIR 1957 Allahabad 381 ( V 44 C 119 June ), as under :
7. The next point urged by the learned counsel for the appellant was that although admittedly specimen signatures of the complaint Mohan Singh, Sher Singh and Umed Singh were taken by the investigating officer for comparison with the signatures on the money order form and the acknowledgment receipt, expert evidence on that point was not secured by the prosecution. It is to be noted, however, that the appellant himself admitted in his statement under S. 342, Cr. P. Code, that the signature in question on the money order form, including the one on the acknowledgment receipt portion of it, were not the signatures of any of these three persons.
Where there was the necessity of the prosecution CBI Vs. Ashok Kr. Sehgal etc., (CC254/07) pg 65 of 87 Special Judge, CBI01, Central, Delhi 66 proving a fact which stood admitted ? There was no other point taken by the learned counsel for the appellant except that the sentence imposed upon the appellant was severe. Before coming to the question of sentence it may be stated that there are two circumstances which lend such support to the prosecution case as to establish it.
In the first place, the prosecution having proved, and the appellant having admitted that the payment was not made to, nor the money order signed by, Mohan Singh or by the only two other students, Sher Singh and Umed Singh, who lived in the same tenements with Umed Singh, it was for the appellant to prove who that boy was through whom the appellant professes to have made the payment and obtained the signatures of Mohan Singh. The only possible boys known were produced by the prosecution. Who the other particular boy referred to by the appellant was, could only be known to the appellant. That was a fact which was especially within the knowledge of the appellant, and burden of proving that fact therefore was upon the appellant, within the purview of S. 106, Evidence Act. The present case therefore belonged to that exceptional class of cases in which, in the words of their Lordships of the Supreme Court in Shambhu Nath Mehra vs. The State of Ajmer, 1956 SCR 199 ; ((S) AIR 1956 SC 404) (A).
"It would be impossible, or at any rate disportionately difficult, for the prosecution to establish facts which are CBI Vs. Ashok Kr. Sehgal etc., (CC254/07) pg 66 of 87 Special Judge, CBI01, Central, Delhi 67 'especially' within the knowledge of the accused and which he could prove without difficulty or inconvenience."
The burden which, in view of the evidence adduced by the prosecution, had shifted on to the defence in this case was not discharged. As adverted to already, the appellant produced no evidence as to whom actually he had made the payment. He did not say that he even made an attempt to search for the boy to whom he professes to have made the payment.
(emphasis supplied by me)
52. In the present case also, both the accused persons have shared the total amount of Rs.17903.10p., illegally and have not given any intimation to their department, regarding the wrong credit of these cheques in their savings bank accounts. None of the accused persons have asked any query, either from the Bank officials or from their employer, regarding the false credit of these cheques, in the account of accused Sri Kant Singh. They have even failed to explain the circumstances, under which the accused Sri Kant Singh issued cheque Ex.PW8/F, in favour of co accused Ashok Kumar Sehgal. Both the accused persons have, CBI Vs. Ashok Kr. Sehgal etc., (CC254/07) pg 67 of 87 Special Judge, CBI01, Central, Delhi 68 therefore, misappropriated the said amount for their own use and have not returned back the said amount to their employer, till date.
53. In these circumstances of the case and the material evidence on record, as discussed above, I am of the considered opinion that the prosecution has successfully proved its case against both the accused persons, beyond a shadow of doubt, for the offence punishable u/s. 120B of The Indian Penal Code r/w Sec. 420 IPC & Sec. 13(1) (d) punishable u/s. 13(2) of The Prevention of Corruption Act, 1988, and for the offences u/s. 420 IPC & Section 13(1) (d) punishable u/s. 13 (2) of the Prevention of Corruption Act, 1988. The prosecution has also succeeded in proving its case, for the offences under Section 468 & 471 of The Indian Penal Code, against accused Ashok Kumar Sehgal. Both the accused are therefore, held guilty & convicted for the said offences, accordingly.
It is ordered accordingly.
CBI Vs. Ashok Kr. Sehgal etc., (CC254/07) pg 68 of 87 Special Judge, CBI01, Central, Delhi 69 Let the convicts be heard on the point of sentence on the next date of hearing.
Announced in open Court on 26 day of November, 2014 th BRIJESH KUMAR GARG Special Judge:CBI01 Central District. Delhi CBI Vs. Ashok Kr. Sehgal etc., (CC254/07) pg 69 of 87 Special Judge, CBI01, Central, Delhi 70 IN THE COURT OF SH. BRIJESH KUMAR GARG:
SPECIAL JUDGE: CBI01, CENTRAL DISTRICT. DELHI CC No.254/07 RC : 17(A)/91 PS : CBI/ACB/New Delhi U/s : 120B/420/468/471 IPC & 13(1)(d) r/w sec 13(2) of P.C. Act, 1988 CBI Vs. 1) Ashok Kumar Sehgal
2) Sri Kant Singh ORDER ON 'SENTENCE'
1. This Court, vide judgment dated 26.11.14, held both the accused Ashok Kumar Sehgal and Sri Kant Singh, guilty of offences punishable U/s 120B IPC r/w section 420 IPC & sec.
13(1)(d) punishable u/s 13 (2) of the Prevention of Corruption Act, 1988. They were also held guilty of the substantive offences U/s 420 IPC & Sec. 13(1) (d) punishable under Section 13(2) of The Prevention of Corruption Act, 1988. In addition, the accused Ashok Kumar Sehgal was also held guilty for the offences punishable under section 468 & 471 of the I.P.C. CBI Vs. Ashok Kr. Sehgal etc., (CC254/07) pg 70 of 87 Special Judge, CBI01, Central, Delhi 71
2. I have heard Sh. Praneet Sharma, Ld. PP for CBI; Sh. Sumit Rajput, Advocate, for the convict Ashok Kumar Sehgal and Sh. Umesh Sinha, Advocate, for convict Sri Kant Singh, on the point of sentence, at length.
3. Sh. Praneet Sharma, Ld. PP for the CBI, has prayed for taking a strict view of the matter and for awarding an exemplary punishment to both the convicts. He has argued that the corruption has taken its roots, deep in society and therefore, the maximum punishment be awarded to the convicts to give a message to the society that the corruption is to be dealt with heavy hands. Ld. PP for the CBI has relied upon the following judgments, in support of his contentions :
(i) State Through S.P., C.B.I., New Delhi Vs. Ratan Lal Arora, reported as Appeal (crl.) No. 532 of 2004.
(ii) State of Madhya Pradesh & Ors. Vs. Shri Ram Singh, reported AIR 2000 SC 870.
CBI Vs. Ashok Kr. Sehgal etc., (CC254/07) pg 71 of 87 Special Judge, CBI01, Central, Delhi 72
4. On the other hand, Ld. counsel for convict Ashok Kr. Sehgal has prayed for taking of a lenient view. He has argued that the convict is about 58 years of age and is having two minor children and is the sole bread earner for his family as his wife is not working. He has also argued that the convict is not a habitual offender and is having no previous criminal record and is facing trial since the year 1991. He has also argued that the convict is already in judicial custody in CC No. 251/07 and is undergoing the sentence in the said case. The Ld. defence counsel has relied upon the judgment of the Hon'ble Supreme Court in case titled as R. Venkatakrishnan Vs Central Bureau of Investigation, reported as AIR 2010 SC 1812, in support of his contention.
5. The Ld. counsel for convict Sri Kant Singh has argued that the convict is about 63 years of age and is suffering from age related ailments. He has also argued that the convict is having old aged wife and a son, who is studying in B.Tech at Bangalore, besides 90 year old motherinlaw to look after, as he is the sole bread CBI Vs. Ashok Kr. Sehgal etc., (CC254/07) pg 72 of 87 Special Judge, CBI01, Central, Delhi 73 earner in his family. He has also argued that the convict is not a habitual offender and is having no previous criminal record and is facing trial since the year 1991 and therefore, a lenient view may be taken against him. The Ld. defence counsel has relied upon the following judgments, in support of his contentions:
(i) T.M.Joseph Vs. State of Kerala, reported as, AIR 1992 Supreme Court 1922
(ii) Makhan Singh Vs. State of Punjab, reported as, AIR 1994 Supreme Court, 299
(iii) R.Venkata Krishnan Vs. Central Bureau of Investigation, reported as AIR 2010 Supreme Court 1812, and
(iv) V.K.Verma Vs. CBI, dated 14.02.2014, passed in Criminal Appeal No. 404 of 2014.
6. I have carefully perused the case file and I have given my considered thoughts to the arguments addressed by the Ld. PP for the CBI and the Ld. defence counsels. I have also perused the various judgments, cited by the Ld. PP for the CBI and the Ld. defence counsels.
7. Section 120B IPC and Section 420 IPC provide as under :
CBI Vs. Ashok Kr. Sehgal etc., (CC254/07) pg 73 of 87 Special Judge, CBI01, Central, Delhi 74 120B. Punishment of Criminal Conspiracy - (1) whoever is a party to a criminal conspiracy to commit an offence punishable with death, [imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.
420. Cheating and dishonestly inducing delivery of property Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
8. Section 468 I.P.C. provides as under :
468. Forgery for purpose of cheating :
Whoever commits forgery, intending that the document or electronic record forged shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and CBI Vs. Ashok Kr. Sehgal etc., (CC254/07) pg 74 of 87 Special Judge, CBI01, Central, Delhi 75 shall also be liable to fine.
9. Section 471 I.P.C. provides as under :
471. Using as genuine a forged document or electronic record :
Whoever fraudulently or dishonestly uses as genuine any document or electronic record which he knows or has reason to believe to be a forged document or electronic record, shall be punished in the same manner as if he had forged such document or electronic record.
10. The provisions of Section 13 of The Prevention of Corruption Act, 1988, are also reproduced below, for ready reference, as under:
13. Criminal misconduct by a public servant - (1) A public servant is said to commit the offence of criminal conduct
(a) If he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification other than legal remuberation as a motive or reward such as is mentioned in Section 7; or
(b) If he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by him, or having any connection with the official CBI Vs. Ashok Kr. Sehgal etc., (CC254/07) pg 75 of 87 Special Judge, CBI01, Central, Delhi 76 functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned; or
(c) If he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person to do so; or
(d) If he,
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or
(e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income.
Explanation. For the purposes of this section, "known sources of income" means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant.
(2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a terms which shall not less than one year but which may extend to seven years and CBI Vs. Ashok Kr. Sehgal etc., (CC254/07) pg 76 of 87 Special Judge, CBI01, Central, Delhi 77 shall also be liable to fine.
11. In the present case, the allegations proved against the convicts are quite serious in nature. The convicts had conspired together and had cheated their employer, i.e., the Indian Airlines for a total sum of Rs.17,903.10 p. Various charge sheets have been filed by CBI against the convict Ashok Kumar Sehgal and other accused persons. In the present case, the convicts have connived together and in pursuance to their illegal designs and common object of the conspiracy, five cheques worth Rs. 17,903.10 p. were deposited in the savings bank account of convict Sri Kant Singh and thereafter convict Sri Kant Singh, issued a cheque for a sum of Rs. 8110/ in the name of convict Ashok Kr. Sehgal. From the material on record, it is clear that convict Sri Kant Singh had also actively participated and had facilitated the convict Ashok Kumar Sehgal, in commission of the various offences, in pursuance of the criminal conspiracy between the two and both of them have shared the illgotten money. CBI Vs. Ashok Kr. Sehgal etc., (CC254/07) pg 77 of 87 Special Judge, CBI01, Central, Delhi 78
12. It has been held by the Hon'ble High Court of Delhi, in case titled as, 'Hari Kishan Bansal Vs. CBI', (Supra), as under:
"47. I have carefully examined the submissions. The appellant had attempted to bribe a public servant who, true to his conscience had refused to succumb to the temptation. Several attempts were made by the appellant to bribe the public servant, all of which were successfully resisted by the latter. Having said that, the submissions made by the learned counsel for the appellant on the harshness of the sentence of 4 years' RI cannot also be ignored totally. The appellant has undergone the travails of a trial for about 19 years. He is now close to 80 years without any regular source of income, as stated by his counsel and has not only his wife to look after but also the wife and children of his deceased son. There is also no record of his having committed any offence during this period of 19 years. Having regard to all these mitigating circumstances I reduce the sentence to six months."
(emphasis supplied by me)
13. It is also held by the Hon'ble High Court of Rajasthan (Jaipur Bench), in case titled as Roop Chand Vs. State (CBI), (Supra), as under:
CBI Vs. Ashok Kr. Sehgal etc., (CC254/07) pg 78 of 87 Special Judge, CBI01, Central, Delhi 79 "(7) The policy of the 'Act of 1947' in giving a very wide discretion in the matter of punishment to the Judge has its origin in the impossibility of laying down standards. The impossibility of laying down standards is at the very core of the criminal law as administered in India which invests the judges with a very wide discretion in the matter of fixing the degree of punishment. The discretion in the matter of sentence is liable to be corrected by superior courts. Laying down of standards to the limited extent possible would not serve the purpose.
The exercise of Judicial discretion on well recognized principles is, in the final analysis, the safest possible safeguards for the accused. As was held by Hon'ble Apex Court in Jagmohan Singh vs. State of U.P., 1973 1 SCC 20. (8) The circumstances which could be considered in alleviation of punishment can be the minority of the offender, old age of the offender; the condition of the offender, i.e. wife, apprentice; and the state of health and the sex of the delinquent.
(9) In his book "Ethics of Punishment" Sir waiter Moberly has observed that the principle of punishment is to prevent like offences and to take away the will to repeat the evil. There is not much of chance of the offences being repeated again.
(12) Here the minimum punishment provided is one year's imprisonment with fine and the maximum punishment is for a term of seven years with fine. The section itself does not mention about the category of imprisonment whether simple or rigorous. However on the analogy of the Indian Penal Code, we may take it as rigorous imprisonment. As regards the CBI Vs. Ashok Kr. Sehgal etc., (CC254/07) pg 79 of 87 Special Judge, CBI01, Central, Delhi 80 quantum of fine, necessary guidance has been provided in subsection (3b). In this way the discretion of the Court has been narrowed a bit in awarding punishment. However, in genuine cases where in the opinion of the Court, the accused deserves a lenient sentence than the minimum prescribed, the court may award a sentence of imprisonment of less than one year but reasons and the extenuating circumstances will have to be given in writing by the court. (Sajjan Singh vs. State of Punjab, 1964 AIR (SC) 464)."
(emphasis supplied by me)
14. It is also held by the Hon'ble Supreme Court in case titled as "V.K.Verma Vs. CBI (Supra)", as under :
15. The appellant is now aged 76. We are informed that he is otherwise not keeping in good health, having had also cardio vascular problems. The offence is of the year 1984. It is almost three decades now. The accused has already undergone physical incarceration for three months and mental incarceration for about thirty years. Whether at this age and stage, it would not be economically wasteful, and a liability to the State to keep the appellant in prison, is the question we have to address. Having given thoughtful consideration to all the aspects of the matter, we are of the view that the facts mentioned above would certainly be special reasons for reducing the substantive sentence but enhancing the fine, while maintaining the conviction.
CBI Vs. Ashok Kr. Sehgal etc., (CC254/07) pg 80 of 87 Special Judge, CBI01, Central, Delhi 81 (emphasis supplied by me)
15. It is also held by the Hon'ble Supreme Court in case titled as "R.Venkatakrishnan v. Central Bureau of Investigation, (Supra), as under :
194. All the accused were at the relevant time public servants. Each one of them played a specific role in diversion of funds from NHB to the account of Harsad Mehta, all ostensibly under a call money transaction. They thereby in our opinion facilitated Harshad Mehta to obtain pecuniary advantage within the meaning of the section. The facts were anything but intended to be in public interest. On the contrary the public loss and suffering occasioned thereby was immeasurable. Though it is true, as has been argued before us that all the funds diverted have subsequently been returned to NHB and no actual loss has been occasioned thereby either to the UCO Bank or the NHB. But it must not be forgotten that white collar crimes of such a nature affect the whole society even though they may not have any immediate, victims. We, accordingly, hold accused A1 to A3 and A6 guilty of criminal misconduct under S. 13 (1)(d) (iii) of the Prevention of Corruption Act.
195. A sentence of punishment in our opinion poses a complex problem which requires a balancing act between the competing views based on the reformative, the deterrent as CBI Vs. Ashok Kr. Sehgal etc., (CC254/07) pg 81 of 87 Special Judge, CBI01, Central, Delhi 82 well as the retributive theories of punishment. Accordingly a just and proper sentence should neither be too harsh not too lenient. In judging the adequacy of a sentence, the nature of the offence, the circumstances of its commission, the age and character of the offender, injury to individual or the society, effect of punishment on offender, are some amongst many other factors which should be ordinarily taken into consideration by the courts. We may also place on record that as the CBI has not preferred any appeal against the quantum of sentence, this Court cannot impose a higher sentence.
(emphasis supplied by me)
16. Keeping in view, the entire circumstances and facts of the present case and the law laid down by the Hon'ble Supreme Court and also keeping in view the fact that the convict Sri Kant Singh is aged about 63 years and is facing trial for the last about 23 years and is not a habitual offender and is having no previous criminal record and has not committed any other offence during this entire period of 23 years, a lenient view is taken against him. Accordingly, convict Sri Kant Singh is sentenced to undergo Rigorous Imprisonment for a term of one year & to pay a fine of Rs.10,000/ for the offence punishable u/s.120B IPC r/w Sec. CBI Vs. Ashok Kr. Sehgal etc., (CC254/07) pg 82 of 87 Special Judge, CBI01, Central, Delhi 83 420 IPC and sec. 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988. In default of payment of fine, he shall further undergo a term of Rigorous Imprisonment for one month. He is further sentenced to undergo a term of Rigorous Imprisonment for one year and to pay a fine of Rs.10,000/ for the offence u/s. 13(1) (d) punishable u/s. 13(2) of the Prevention of Corruption Act, 1988. In default of payment of fine, he shall further undergo a term of Rigorous Imprisonment for one month. He is further sentenced to undergo a term of Rigorous Imprisonment for one year & to pay a fine of Rs.10,000/ for the offence punishable U/s 420 IPC. In default of payment of fine, he shall further undergo a term of Rigorous Imprisonment for one month.
17. However, from the record, it is clear that the convict Ashok Kumar Sehgal is the kingpin and he is the master mind of the entire conspiracy, in pursuance to which, various offences were committed, by both the convicts. Convict Ashok Kumar Sehgal has also forged the various documents and has also used the CBI Vs. Ashok Kr. Sehgal etc., (CC254/07) pg 83 of 87 Special Judge, CBI01, Central, Delhi 84 same, to meet his objectives. Therefore, keeping in view the severity of the offences proved against him, I am not inclined to take a lenient view against him.
18. It has been held by the Hon'ble Supreme Court of India, in case titled as "State through S.P., New Delhi Vs. Rattan Lal Arora (Supra), as under : "That apart Section 7 as well as Section 13 of the Act provide for a minimum sentence of six months and one year respectively in addition to the maximum sentences as well as imposition of fine. Section 28 further stipulates that the provisions of the Act shall be in addition to and not in derogation of any other law for the time being in force. In the case of Superintendent Central Excise, Bangalore vs. Bahubali, (AIR 1979 SC 1271), while dealing with Rule 126P (2) (ii) of the Defence of India Rules which prescribed a minimum sentence and Section 43 of the Defence of India Act, 1962 almost similar to the purport enshrined in Section 28 of the Act in the context of a claim for granting relief under the Probation Act, this Court observed that in cases where a specific enactment, enacted after the Probation Act prescribes a minimum sentence of imprisonment, the provisions of Probation Act cannot be invoked if the special Act contains any provision to enforce the same without reference to any other Act containing a provision, in derogation of the special enactment, there is no scope for extending the benefit of the Probation Act to the accused. Unlike, the provisions contained CBI Vs. Ashok Kr. Sehgal etc., (CC254/07) pg 84 of 87 Special Judge, CBI01, Central, Delhi 85 in Section 5 (2) proviso of the Old Act providing for imposition of a sentence lesser than the minimum sentence of one year therein for any "special reasons" to be recorded in writing, the Act did not carry any such power to enable the Court concerned to show any leniency below the minimum sentence stipulated. Consequently, the learned Single Judge in the High Court committed a grave error of law in extending the benefit of probation even under the Code. At the same time we may observe that though the reasons assigned by the High Court to extend the benefits of probation may not be relevant, proper or special reasons for going below the minimum sentence prescribed which in any event is wholly impermissible, as held supra, we take them into account to continue the sentence of imprisonment to the minimum of six months under Section 7 and minimum of one year under Section 13 (2) of the Act, both the sentences to run concurrently. So far as the levy of fine in addition made by the learned Trial Judge with a default clause on two separate courts are concerned, they shall remain unaffected and are hereby confirmed.
(emphasis supplied by me)
19. Accordingly, convict Ashok Kumar Sehgal is hereby sentenced to undergo Rigorous Imprisonment for a term of one year & to pay a fine of Rs.10,000/, for the offence punishable u/s.120B IPC r/w Section 420 IPC & Sec. 13(2) r/w 13(1)(d) of the CBI Vs. Ashok Kr. Sehgal etc., (CC254/07) pg 85 of 87 Special Judge, CBI01, Central, Delhi 86 Prevention of Corruption Act. In default of payment of fine, he shall further undergo a term of R.I. for a period of one month.
20. He is further sentenced to undergo Rigorous Imprisonment for a term of four years & to pay a fine of Rs.10,000/ for the offence U/s 420 IPC. In default of payment of fine, he shall further undergo a term of Rigorous Imprisonment for a period of one month.
21. He is further sentence to undergo a term of Rigorous Imprisonment of four years and to pay a fine of Rs.10,000/, for the offences under Sections 468 & 471 IPC. In default of payment of fine, the convict shall further undergo a term of Rigorous Imprisonment for one month.
22. Convict Ashok Kumar Sehgal is further sentenced to undergo Rigorous Imprisonment for a period of one year & to pay a fine of Rs.10,000/ for the offence U/s 13(1) (d) punishable u/s. 13(2) of CBI Vs. Ashok Kr. Sehgal etc., (CC254/07) pg 86 of 87 Special Judge, CBI01, Central, Delhi 87 the Prevention of Corruption Act, 1988. In default of payment of fine, he shall further undergo a term of Rigorous Imprisonment for a period of one month.
23. All the sentences of both the convicts shall run concurrently.
Both the convicts shall also be given the benefit of Section 428 Cr.P.C. for the period already undergone by them, during the trial, (if any).
It is ordered accordingly.
Announced in open Court
on 29 day of November, 2014 BRIJESH KUMAR GARG
th
Special Judge:CBI01
Central District. Delhi
CBI Vs. Ashok Kr. Sehgal etc., (CC254/07) pg 87 of 87 Special Judge, CBI01, Central, Delhi