Delhi District Court
Cbi vs . 1 Mahender Tandon, (A-1) on 3 April, 2013
IN THE COURT OF MANOJ JAIN: SPECIAL JUDGE (PC ACT) (CBI)
SOUTH DISTRICT: SAKET DISTRICT COURTS
NEW DELHI
CC No. 13/2011
RC 6 (E)/2005/EOW-II/CBI
U/s 120-B r/w 419, 420, 467, 468 & 471 IPC&13(2) r/w13(1)(d) of PC Act.
CBI Vs. 1 Mahender Tandon, (A-1)
Son of Sh. Trinath Ram,
Resident of 6021, Panchkula,
(Haryana)-134107.
2 Deepak Kumar, (Since deceased),
Son of Sh. Leela Dhar,
Resident of Gali No.4, East Azad Nagar,
Delhi-51.
(Proceedings qua him stood abated vide
order dated 25.8.2012)
3 R. K. Mehta, (A-3)
Son of Late Sh. Gurditta Ram,
Resident of 163, Sector-4, Gurgaon,
Haryana.
4 Rajendra Prasad Dadeech, (A-4)
Son of Late Sh. Madan Lal Dadeech,
Resident of 1957, Kharjanewale ka Rasta,
3rd crossing Chand Pole, Jaipur,
Rajasthan.
Date of Institution : 25.03.2008
Date of framing of charge : 24.02.2010
Date on which case was received on
Transfer by this Court : 26.09.2011
Date of conclusion of arguments : 01.04.2013
Date of Judgment : 03.04.2013
Memo of Appearance
Sh. Jagbir Singh, Learned PP for CBI.
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Sh. Anil Rakhra, Learned Counsel for Accused Mahender Tandon.
Sh. K. B. B. Singh, Learned Counsel for Accused R. K. Mehta.
Sh. Udai Manaktal, Learned Counsel for Accused R. P. Dadeech.
JUDGMENT
VERSION OF PROSECUTION 1.0 M/s Vikrant Equipment India was proprietorship concern of accused Mahender Tandon It was allegedly having its registered address at 60/26, Rajender Jaina Apartments, New Rohtak Road, Karol Bagh, New Delhi and was dealing in scientific equipments. It applied for over draft limit by moving application under "Cent Trade Scheme" with Safdarjang Enclave branch of Central Bank of India.
1.1 It would be also important to mention here that such scheme was launched, principally, to boost up business under trading sector and was intended for all types of traders. Outer limit of facility under such scheme was Rs.25 lacs and the prime security was to be in the shape of equitable mortgage of non-encumbered property having value of double the limit sought. Such property was also required to be in the name and possession of borrower.
1.2 M/s Vikrant Equipment India through its proprietor Sh. Mahender Tandon prayed for over draft limit of Rs.12 lacs and moved application dated 16.04.2003. Requisite documents viz audit reports, balance sheets, projected balance sheets and copies of Income Tax Returns (ITRs) etc were also submitted. Property number. E23, Old Industrial Area, Bahadur Garh, Haryana was offered for creating equitable mortgage and original title deeds were also furnished.
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1.3 Safdarjang Enclave branch of Central Bank of India was having
three officials in the managerial capacity viz Sh. R. P. Dadeech, Senior Manager (Scale-III officer), Sh. Ram Pada Mishra, Manager/Accountant (Scale-II officer) and Sh. R. K. Mehta, Assistant Manager (Scale-I officer).
1.4 Sh. R. P. Dadeech and Sh. R. K. Mehta are accused in the present case whereas Sh. Ram Pada Mishra happens to be a prosecution witness.
1.5 Such application was processed by R. K. Mehta who prepared appraisal report and limits were sanctioned by Sh. R. P. Dadeech vide order dated 30.04.2003.
1.6 Limits were accordingly released and were also availed by the borrower.
1.7 Such account, however, turned Non Performing Account (NPA) with outstanding liability of Rs.12.58 lacs.
1.8 Irregularities and fraudulent activities pertaining to the said account were brought to the notice of CBI by Sh. R. K. Khanna, Sr. Manager, Central Bank of India, Safdarjang Enclave vide complaint dated 6.5.2005. Such complaint contained reference to various other companies also which had sought facilities from the same branch i. e. Safdarjang Enclave Branch and it was brought to the light that the bank had been cheated by opening accounts in different names in connivance with bank officials and thereby wrongful loss was caused to the bank. CBI was requested to investigate and to bring the culprits to the books.
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1.9 Accordingly FIR was registered by CBI on 18.5.2005.
1.10 Present charge sheet, however, relates to the aforesaid account
of M/s Vikrant Equipment India only.
1.11 Investigation revealed that accused Mahender Tandon had
submitted audit reports, balance sheets and profit and loss account statement purportedly issued by Sh. J. M. Pal, proprietor M/s Pal & Associates (Chartered Accountants) whereas these were found to be forged as M/s Pal & Associates had not done any auditing for M/s Vikrant Equipment India. It was also found that Income Tax Returns (ITRs) submitted by accused Mahender Tandon were forged and false. Accused Mahender Tandon had offered property no. E23, Old Industrial Area, Bahadur Garh, Haryana for creating equitable mortgage but he concealed the fact that he had already availed credit facilities from Syndicate Bank, East Patel Nagar Branch, New Delhi against that very property. It was also found that the sale deed submitted to Central Bank of India was different from the one actually registered and thus even the sale deed was found to be false and forged. According to investigating agency, the forged sale-deed had been prepared by accused Deepak Kumar (since deceased).
1.12 Crux of the investigation was to the effect that accused Mahender Tandon availed credit facilities on the basis of forged documents which had been prepared with the assistance of accused Deepak Kumar and such forged documents were submitted before the Safdarjang Enclave branch and these forged documents were knowingly and deliberately accepted by said two bank officials and all accused were acting in connivance and conspiracy with one another and thereby caused wrongful loss to the bank and corresponding wrongful gain to themselves.
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COGNIZANCE AND CHARGES
2.0 Charge sheet was accordingly filed in the court on 25.3.2008. It was directed against A1, A2 and A3 only. Ld. Special Court sought explanation, and rightly so, from CBI as to why Sh. R. P. Dadeech had been kept out of the loop as in the charge sheet itself, specific role had been explicitly assigned to R. P. Dadeech as well.
2.1 On 22.8.2008, a supplementary charge sheet against accused R. P. Dadeech was also filed.
2.2 All the four accused were ordered to be summoned for commission of offences u/s 120B r/w 419, 420, 467, 468 & 471 IPC and section 13 (2) r/w 13 (i) (d) of P. C. Act and substantive offence thereof. Such order taking cognizance is dated 17.8.2009.
2.3 All the accused accordingly put in appearance.
2.4 Arguments on charge were heard and vide order dated 18.12.2009, all the accused were ordered to be charged for offences u/s 120 B IPC and for offence u/s 120B r/w 420, 467, 468 & 471 IPC and section 13 (2) r/w 13 (1) (d) of P. C. Act. Simultaneously, A1 was separately charged u/s 420 & 471 IPC. A2 was separately charged u/s 420, 467 , 468 IPC and A3 and A4 were also separately charged for offences u/s 13 (2), 13 (1) (d) of PC Act and 420 , 471 IPC.
2.5 All the accused pleaded not guilty and claimed trial.
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WITNESSES OF PROSECUTION
3.0 Prosecution was directed to adduce evidence and has examined
18 witnesses. Witnesses can be classified as under:-
OFFICIALS FROM CENTRAL BANK OF INDIA PW1 Sh. Ravinder Kumar Khanna.
PW2 Sh. Ramapada Mishra.
PW5 Sh. S. S. Sheokand.
PW7 Sh. Pramod Sharma.
PW8 Sh. Pashipati Nath Gupta.
PW13 Sh. Girish Prabhakar Chitnis (Sanctioning authority). PW14 Sh. Pawan Kumar Garg.
PRIVATE WITNESSES PW3 Sh. Yogesh Tiwari (typist under one Mr. Khosla) PW4 Sh. J. M. Pal (Chartered Accountant, whose signatures have been allegedly forged. PW9 Sh. Ashok Kumar (Witness to specimen hand writing/signatures). PW10 Sh. Narender Singh Mann (Witness to specimen hand writing/ signatures). PW11 Sh. Gurmail Singh (Employee of A1).
OFFICIAL WITNESSES/IO PW6 Sh. Bhupinder Kumar (Official from the office of Deputy Commissioner, Jhajjar). PW12 Sh. B. P. Udappa (Official from Syndicate Bank). PW19 Sh. T. Joshi (G. E. Q. D.) PW20 Sh. S. K. Punhani (Witness of seizure).
PW21 Sh. G. P. Singh (Official from the office of VATO). PW22 Sh. Virender Singh (Investigating officer).
CC no. 13/2011 CBI Vs Mahender Tandon etc 6 of 41 3.1 It will be apparent that 18 witnesses graced the witness box and
due to some inadvertence, wrong serial number was assigned to some witnesses.
STATEMENTS OF ACCUSED AND DEFENCE EVIDENCE 4.0 As far as accused Deepak Kumar is concerned, he expired during the trial and proceedings qua him stood abated vide order dated 25.08.2012. It will be also pertinent to mention here that he even moved application for plea-bargain which was, however, dismissed by the court.
4.1 Remaining three accused, in their respective statements u/s 313 Cr. PC, pleaded innocence.
4.2 A1 Mahender Tandon admitted that there was Cent Trade Scheme but pleaded that he did not know about its terms and conditions. He admitted that he had moved application under such scheme but supplemented that one Surender Khosla of Kalkaji had proclaimed that he could be contacted for bank loans and therefore, he got in touch with him and even the application was got filled by Surender Khosla who had taken photocopy of property documents from him, which property was otherwise already pledged with Syndicate Bank. He exclaimed that he had not himself offered any property to be kept as security though application was signed by him. He also denied that he had furnished any document along with application and expressed apprehension that these documents might have been prepared by one Chartered Accountant of Mr. Khosla. He also claimed that he was apprised about the sanction of facilities by Mr. Khosla and that he had not signed on any forged sale deed and rather his co accused Deepak was exclusively instrumental in preparing forged documents. Thus he shifted CC no. 13/2011 CBI Vs Mahender Tandon etc 7 of 41 the entire burden on to Mr. Khosla and to his co accused Deepak and denied his involvement in any cheating or forgery. He wished to lead evidence in defence but fact remains that he neither filed any application citing any witness for defence nor examined anyone in his defence.
4.3 A3 R. K. Mehta has tried to wriggle out of the case by claiming that he used to handle various other jobs in the bank and was not concerned with the application moved under Cent Trade Scheme as such application was required to be dealt with by Sr. Manager himself. He admitted that he had prepared the appraisal note and recommended facility but supplemented by saying that the same was as per the instructions of his co-accused R. P. Dadeech. He claimed that he had been falsely implicated in the matter.
4.4 A4 R.P. Dadeech, on the other hand, claimed that whatever documents were furnished by the borrower were scrutinized by the processing officer/recommending officer and as per those recommendations and as per usual practice, he had merely sanctioned the facility. According to him, as per the banking trend, the documents submitted by the borrower were relied upon and before grant of sanction, Legal Search Report (LSR) and Valuation Report were sought which did not indicate anything foul. He also claimed that he had relied on pre inspection report and process note and, thereafter only, he had accorded sanction.
4.5 It would be important to mention that both the bank officials-
accused also chose to lead evidence in defence and got themselves examined by moving applications u/s 315 Cr. PC. A3 R. K. Mehta has entered into witness box as DW1 and R. P. Dadeech entered into witness box as DW2.
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RIVAL CONTENTIONS
5.0 Sh. Jagbir Singh, Ld. SPP has contended that prosecution has
been able to prove its case to the hilt.
5.1 He has vehemently contended that all the accused were acting
in connivance with one another and accused Mahender Tandon, in order to avail the credit facilities, took assistance of his co-accused Deepak who helped him in preparing false documents including forged sale deed and audit reports. Accused Mahender Tandon was in thick of the things right from the inception as these forged documents bear his signatures also which clearly establish his equal association and participation in preparation of forged doc- uments.
5.2 It has also been claimed that both the bank officials had know- ingly, deliberately and dishonestly accepted these documents and as far as accused R. K. Mehta is concerned, he even accepted graft which indicates misuse of office. He has also claimed that both the bank officials are raising accusing fingers upon each other whereas fact remains that they both are equally responsible, Sh. Mehta being processing officer and Sh. Dadeech be- ing sanctioning authority.
5.3 Sh. Rakhra, Ld. counsel for accused Mahender Tandon has contended that accused Mahender Tandon merely wanted to avail the credit facilities and had approached one Mr. Khosla who claimed that he was capable in arranging such loans.
5.4 According to him, A1 never knew about any ill-motive on the
part of Sh. Khosla and had merely gone to the bank and signed the
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application form and he was not even shown the documents which were attached with such application. According to him, A1 cannot be held liable for the misdeeds of others. According to Sh. Rakhra, accused Mahender Tandon has no role to play in any conspiracy or forgery and he even did not sign on any of the alleged forged documents.
5.5 Sh. Singh has defended accused R. K. Mehta and has also furnished written submissions.
5.6 His prime contention is that Sh. Mehta was Assistant Manager and was not associated with the loans and advances at all and was instructed to work as an incharge of saving department, DD issue department, pay order and scroll which used to consume his whole of the day. He admitted that appraisal had been prepared by Sh. Mehta but that was as per the instructions of his senior R. P. Dadeech.
5.7 It has also been claimed that Sh. Dadeech had even obtained report of valuer and LSR from Sh. Harish Tiwari, advocate and the title deeds were accepted by Sh. R. P. Mishra, Manager.
5.8 Sh. Singh has also claimed that there is no material on record suggesting that accused R. K. Mehta had accepted any gratification or that had indulged in any corrupt practice and merely because he had prepared appraisal note, he cannot be hauled up because the account ultimately turned NPA.
5.9 Sh. Uday Manaktala, Ld. Defence counsel for accused R. P. Dadeech has contended that the loan in question was processed and recommended by Sh. Mehta and Sh. Dadeech had also obtained Legal CC no. 13/2011 CBI Vs Mahender Tandon etc 10 of 41 Scrutiny Report from Bank's advocate and Valuation Report of the empanelled valuer and based on such reports and the appraisal note, Sh. Dadeech had accorded sanction which was purely on the basis of material placed before him.
5.10 According to him, rather the borrower has to be taken to task for cheating the bank and for forging the documents. It has been argued that since LSR had been obtained and since even the approved valuer had personally inspected the property in question there was no scope for harbouring any sort of suspicion with respect to the genuineness of the title deeds.
5.11 It has also been argued that had the intention of Sh. Dadeech been fraudulent, he would have obliged the borrower by sanctioning facilities under CGTSI whereby as Sr. Manager, he could have sanctioned loan up to Rs.25 lacs without asking even a single document related to any immovable property.
5.12 Thus according to Sh. Uday Manaktala, Sh. Dadeech was not even negligent and he had sanctioned the loan as per the loan policy in the best commercial interest of the bank without having any mal-intention.
5.13 Written submissions were also placed on record by accused R. P. Dadeech.
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ROLE AND INVOLVEMENT OF ACCUSED MAHENDER TANDON
6.0 It is time to plunge into the record and to weigh up the evidence.
6.1 Let me straightway assess the role and involvement of accused
Mahender Tandon.
6.2 There is no difference of opinion that he was proprietor of M/s
Vikrant Equipment India. There is also no dispute that such M/s Vikrant Equipment India had moved an application for opening current account with Central Bank of India, Safdarjang Enclave branch and also for facilities under Cent Trade Scheme. Application for opening of current account moved by M/s Vikrant Equipment India has been proved as Ex. PW2/A (D14). It bears signatures of accused Mahender Tandon at point A as well as his photograph. Even A1 has admitted such fact. Application is dated 12.3.2003 and current account was accordingly opened and was given number as 101669.
6.3 Application, seeking finance under Cent Trade Scheme, has been proved as Ex.PW11/A and also as Mark P/2/A. It also bears photograph of A1 at point B and his signatures at point A. Application is dated 16.4.2003. According to A1, one Mr. Surender Khosla of Kalkaji had come up with some advertisement in newspaper proclaiming his expertise in procuring bank loans. Consequent thereto, A1 Mahender Tandon contacted Surender Khosla who had got filled such application. As per A1, so much so, Surender Khosla had taken photocopy of his property documents which otherwise was already lying pledged with Syndicate Bank. Mahender Tandon, however, admits that he had signed the application but supplements that he had signed a blank application only.
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6.4 Stance of Mahender Tandon is very simple. According to him,
though he wanted to apply for facilities yet it was Mr. Khosla only who had extended assistance. Mr. Khosla was instrumental in filling up the application and all the documents were also prepared by Mr. Khosla.
6.5 I have seen application and all the supporting documents.
6.6 Application bears seal of M/s Vikrant Equipment India and also bears signatures of A1 Mahender Tandon. A1 is not an illiterate person and it would be hardly palatable that he would sign without bothering to ascertain the contents or the genuineness of the contents. He has tried to pass on the entire buck to some unknown Mr. Khosla and also to some extent to his co- accused Deepak who is no longer alive. I cannot be unmindful of the fact that ultimately the facility was availed by none other than Mr. Tandon and he cannot, therefore, be permitted to say that though the facilities were enjoyed by him yet he does not know anything about the filling up of the application or submission of documents related to such facilities.
6.7 In the application, he claimed that he was in the trading of air conditioners and equipments and the firm was in existence since 1994 and he was the sole proprietor. He also mentioned about the name of his previous banker and also his Sales Tax Number. Naturally all these details would not have been there with Mr. Khosla and these must have been and could have been supplied by Mr. Mahender Tandon. In the application, there is description of the property which was offered as security and undoubtedly even those details must have been given by Mr. Mahender Tandon only.
6.8 Thus the conclusion is inescapable. A1 cannot run away from the contents of the application and supporting documents. He must be having CC no. 13/2011 CBI Vs Mahender Tandon etc 13 of 41 full knowledge with respect to the contents. These must have been filled and furnished under his instructions and now he cannot be permitted to turn his back on the contents of the application.
6.9 Along with the application, any borrower is also required to annex various documents and A1 cannot be permitted to renounce and disclaim such documents which are, indubitably, integral part of the application. These documents are as under:-
i) Projected balance sheet as on 31.3.2005. ii) Projected trading and profit and loss account for the year ending 31.3.2005. iii) Estimated balance sheet as on 31.3.2004. iv) Estimated trading and profit and loss account for the year ending 31.3.2004. v) Provisional balance sheet as on 31.3.2003. vi) Provisional trading and profit and loss account for the year ending 31.3.2003. vii) Assessment of working capital requirement i. e. Form No.2 (Operating Statement.)
viii) Assessment of working capital requirement i. e. Form III
ix) Comparative statement of current assets and current liabilities, i. e. Form IV.
x) Computation of maximum permissible bank finance for working capital i. e. Form V.
xi) Form no.2D Saral Form having acknowledgment dated 10.10.2003 for assessment year 2002-03.
xii) Form 3CB dated 11.7.2002 i. e. audit report by M/s Pal & Associates on the basis of examination of balance sheet as on 31.3.2002.
xiii) Form no.2D Saral Form having acknowledgment dated07.10.2002 for assessment year 2001-02.
xiv) Form 3CB dated 9.7.2001 i. e. audit report by M/s Pal & Associates on the basis of examination of balance sheet as on 31.3.2001.
xv) Form no.2D Saral Form having acknowledgment dated 16.09.2001 for assessment year 2000-01.
xvi) Form 3CB dated 1.7.2000 i. e. audit report by M/s Pal & Associates on the basis of examination of balance sheet as on 31.3.2000.
xvii) Form 1 under Central Sales Tax (Delhi) Rule 1957 and Form ST II under Delhi Sales Tax Rules 1975 for the relevant quarters of 2002.
CC no. 13/2011 CBI Vs Mahender Tandon etc 14 of 41 xviii) Bank statement of previous banker i. e. Vaish Cooperative New Bank Ltd. xix) Copy of licence deed to establish that M/s Vikrant Equipment India was running business from 60/26, Prabhat Marg, New Rohtak Road, Delhi.
6.10 All such documents related to projected balance sheet, profits and loss accounts statement, estimated balance sheet, estimated profit and loss account statement and various forms bear stamp of M/s Vikrant Equipment India and signatures of A1. These have been proved as Ex.PW11/A1.
6.11 Original sale deed dated 29.7.93 executed by Sh. Sushil Kumar in favour of M/s Vikrant Equipment India, Bahadur Garh through its proprietor Sh. Mahender Tandon was also furnished to the bank in order to show that Mahender Tandon as proprietor of M/s Vikrant Equipment India was owner of property No. E23, Old Industrial Area, Bahadur Garh. Related documents, in order to show complete chain of ownership, were also furnished which included conveyance deed, previous sale deed and Will.
6.12 As per such original documents, there was, first of all a conveyance deed dated 15.11.1954 between the Government of Punjab and one Sh. Sada Nand whereby Sh. Sada Nand got the property mutated in his name. Thereafter, there was a sale deed dated 30.3.1963 whereby Sada Nand sold said property in favour of Sh. Chaman Lal. Thereafter, there was a Will dated 7.6.1992 by Sh. Chaman Lal whereby the property came to the share of Sh. Sushil Kumar. And, lastly, Sh. Sushil Kumar vide sale deed dated 6.8.1993 sold the same to Sh. Mahender Tandon as proprietor of M/s Vikrant Equipment India.
6.13 This sale deed dated 06.08.1993 happens to be the most crucial
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aspect of the case.
6.14 It is required to be seen and assessed as to whom such
property was actually sold by Sh. Sushil Kumar. Whether buyer is M/s
Vikrant Equipment India or M/s Vikrant Scientific Works Pvt. Ltd.?
6.15 There is no qualm that M/s Vikrant Scientific Works Pvt. Ltd. was a private limited company. A1 Mahender Tandon was its Managing Director. It is also not in dispute that said private limited company was in the business of manufacturing scientific and laboratory instruments and had requested Syndicate Bank, East Patel Nagar branch for grant of credit facilities and such facilities were sanctioned to M/s Vikrant Scientific Works Pvt. Ltd in the shape of over draft (Hypothecation) to the tune of Rs.40 lacs along with bank security to the tune of Rs.30 lacs in December, 1998. In order to ensure repayment, equitable mortgage of the property of M/s Vikrant Scientific Works Pvt. Ltd. was created and, interestingly, the property remains the same i. e. E23, Old Industrial Area, Bahadur Garh. Facilities were availed but the borrower i. e. M/s Vikrant Scientific Works Pvt. Ltd. did not maintain the finance discipline and there was outstanding liability of more than Rs.61 lacs. Syndicate Bank prayed for recovery of such sum along with interest by filing petition before the Debt Recovery Tribunal III, Delhi and the application of the Syndicate Bank was allowed and recovery order was passed and M/s Vikrant Scientific Works Pvt. Ltd. along with its Director and guarantor were asked to make the payment within 30 days failing which the amount was to be recovered by selling off mortgaged property i. e. E 23, Old Industrial Area, Bahadur Garh measuring 1410 square yards and also by sale of hypothecated goods.
6.16 It is also not in dispute that when account in question i. e.
CC no. 13/2011 CBI Vs Mahender Tandon etc 16 of 41 account of M/s Vikrant Equipment India had also become NPA and irregular, an inspection was carried out and during such inspection it was learnt that Assets Recovery Management Cell of Syndicate Bank was already in the process of auctioning the same very property. In this regard, the deposition of PW1 Ravinder Kumar Khanna be referred to. According to him, when he learnt such fact of auction dated 15.9.2004, he rushed to ARM Cell of Syndicate Bank, Rajendra Nagar where he was shown property papers of E 23, Old Industrial Area, Bahadur Garh but those property papers were found in the name of M/s Vikrant Scientific Works Pvt. Ltd. and accordingly, one Legal Search Report was sought from panel advocate i. e. Mr. Yogesh Pachauri who opined that the documents furnished with the Central Bank of India, Safdarjang Enclave branch were forged.
6.17 Undoubtedly, Mr. Yogesh Pachauri is a material witness but for totally mysterious reasons, he is not cited as prosecution witness in the present matter. His report has also been held back.
6.18 However, I have the benefit of comparing both the sale deeds and it needs no discerning eyes to come to a conclusion that the sale deed which had been furnished to the Safdarjang Enclave branch was a forged sale deed.
6.19 Sh. Mahender Tandon happens to be the proprietor of M/s Vikrant Equipment India. He is also Managing Director of M/s Vikrant Scientific Works Pvt. Ltd.
6.20 In 1998, M/s Vikrant Scientific Works Pvt. Ltd., through its Managing Director Mahender Tandon approached Syndicate Bank, East Patel Nagar for credit facilities which were sanctioned in 1998 against equitable CC no. 13/2011 CBI Vs Mahender Tandon etc 17 of 41 mortgage of E 23, Old Industrial Area, Bahadur Garh and such property was accordingly mortgaged with Syndicate Bank.
6.21 Naturally, since the property was mortgaged, the original sale deed was submitted with the East Patel Nagar branch of Syndicate Bank. Such sale deed is Mark AX-2 and a bare perusal of such sale deed would show that Sh. Sushil Gupta son of Sh. Chaman Lal had sold E23, Old Industrial Area, Bahadur Garh having total area 1410 square yards to M/s Vikrant Scientific Works Pvt. Ltd., Bahadur Garh through its Managing Director Sh. Mahender Tandon son of Sh. Tirath Ram Tandon r/o G144, Paschim Vihar New Delhi-63 for a sum of Rs.4,30,000/-. Sale deed was registered on 6.8.1993 vide Document Number.1314, Book Number.1, Volume Number 80, page Number 24 and additional Book Number 1, Volume Number 1914. Stamps were purchased vide serial no. 815/1 to 815/17 on 29.7.1993 and the worth of total stamps is Rs.66,650/-.
6.22 Naturally, since the original title deed was lying with M/s Syndicate Bank in connection with previous facilities, A1 was not in a position to avail any other facility by mortgaging the same property.
6.23 Reason was perceptible.
6.24 He was no longer in possession of original title deeds.
6.25 Original title deeds were with Syndicate Bank. All these things have come to the fore by way of testimony of Sh. B. P. Udappa of Syndicate Bank who had sent all the documents in original to CBI vide letter Ex.PW12/A (D8). His testimony is unrebutted and uncontroverted.
CC no. 13/2011 CBI Vs Mahender Tandon etc 18 of 41 6.26 Mahender Tandon was in need of money and with that idea, he
moved application under Cent Trade Scheme to the Safdarjang Enclave branch of Central Bank of India. He naturally required the original sale deed for creating equitable mortgage. Since the original sale deed was already pledged with Syndicate Bank, East Patel Nagar, Mahender Tandon was left with no other option but to construct and generate another original. It resulted in creation of forged sale deed. Sh. Deepak Kumar proved to be instrumental for said ulterior purpose. It is not of much significance whether he was contacted directly or was mere assistant of Mr. Khosla.
6.27 Prosecution has come up with specific case in this regard as according to the prosecution, it was accused Deepak Kumar who had forged the second sale deed. It will be also pertinent to mention here that accused Deepak Kumar had, on one occasion, moved application for plea-bargain which was dismissed by this court.
6.28 Let me straightway come to the second sale deed.
6.29 It has been exhibited as Ex.PW19/C. Seller happens to be the same Sushil Kumar. Date of registration remains the same i. e. 6.8.93. So much so, the book number and volume number remain the same. Worth of stamp-paper remains the same and even the stamps were shown purchased against the same serial number i. e. 815/1 to 815/17 dated 29.7.93. Sale consideration is found to be the same i.e. Rs.4,30,000/- and the worth of stamp purchased is also same i.e. of Rs.66,650/-.
6.30 The interesting twist comes where the name of the buyer is mentioned.
CC no. 13/2011 CBI Vs Mahender Tandon etc 19 of 41 6.31 As already discussed, as per the genuine sale deed, said property was sold to M/s Vikrant Scientific Works Pvt. Ltd. and Sh.
Mahender Tandon had signed as buyer on behalf of such private limited company but in the forged sale deed, the buyer has been shown as M/s Vikrant Equipment India and such sale deed was also signed by Sh. Mahender Tandon as proprietor of M/s Vikrant Equipment India. Reference be made to page 7 of the sale deed in particular where the name of the buyer has been so shown albeit differently and fraudulently.
6.32 Since the facilities were to be availed by another firm under the name and style as M/s Vikrant Equipment India, forged documents were accordingly prepared in the name of M/s Vikrant Equipment India and were submitted before the Safdarjang Enclave Branch, Central Bank of India.
6.33 It becomes very much apparent and evident that the sale deed furnished with Central Bank of India was forged and different with the one pledged with Syndicate Bank. Undoubtedly, the testimony of official of concerned Revenue Office was of paramount importance. Prosecution sought to prove the official record but by calling one official of Deputy Commissioner, Jhajjar, HRA Branch. However, his testimony was deferred as the original documents were not produced and thereafter this official was never produced before the Court. No other official from HRA branch was summoned though prosecution was granted liberty to that effect.
6.34 Fact, however, remains that non-examination of such official witness has not caused any adverse impact over the case of prosecution.
6.35 Two different sets of documents furnished by A1 clearly indicate his malafide intention. He was the ultimate beneficiary and therefore, there CC no. 13/2011 CBI Vs Mahender Tandon etc 20 of 41 would have been some sort of tacit understanding between him and his co accused Deepak for preparation of such forged documents. Conspiracy is not tangible thing which can be touched. It has to be inferred on most of the occasions.
6.36 Sale deed Ex.PW19/C also bears signatures of A1 Mahender Tandon at Q467 and Q468 and even PW19 T. Joshi, GEQD has specifically deposed that after comparing the questioned signatures with the specimen signatures, he came to the conclusion that such signatures Q467 and Q468 and specimen signatures S369 to S379 (of Mahender Tandon) were written by one and the same person. Sh. T. Joshi has been exhaustively grilled by the defence but despite his comprehensive questioning, I have not been able to find anything which may suggest that these signatures Q467 and Q468 are not of A1 Mahender Tandon.
6.37 According to Sh. Rakhra, even these signatures might have been made by Sh. Deepak Kumar with the assistance of Sh. Khosla. However, I am not impressed with such contention at all. I have seen the cross examination of IO Inspector Virender Singh and it was suggested to him that the forged sale deed had been prepared by accused Deepak Kumar. Curiously such suggestion was put to him by accused Mahender Tandon and investigating officer immediately answered in affirmative and claimed that it was correct that such forged sale deed had been prepared by accused Deepak Kumar. However, he quickly supplemented even Deepak Kumar had disclosed that it was Mahender Tandon who had put his genuine signatures on such forged sale deed.
6.38 Even if a forged document is prepared and anyone, knowingly, puts his genuine signatures on such forged documents, such person would CC no. 13/2011 CBI Vs Mahender Tandon etc 21 of 41 be ostensibly responsible for making a forged document. Merely because his genuine signatures appear on any such forged document, such person cannot claim immunity from the offence of forgery.
6.39 Mahender Tandon very well knew that the original sale deed was already lying with the Syndicate Bank. Such sale deed reflected name of M/s Vikrant Scientific Works India Ltd. as buyer. He accordingly got prepared one other sale deed showing the name of the buyer/owner as M/s Vikrant Equipment India. This forged sale deed is laminated one and even the stamp papers contained therein might be bogus. I have serious apprehension that even the signatures of concerned officials on the same would be bogus. It would have been appropriate had investigating agency got such fact also investigated. It seems that CBI, somehow, did not have any qualm qua the genuineness of the stamp papers though labelled the entire sale deed as forged and bogus.
6.40 Be that as it may, fact remains that it is established that the sale deed Ex.PW19/C furnished by M/s Vikrant Equipment India to Central Bank of India, Safdarjang Enclave branch was a forged sale deed and since it also contains signatures of Sh. Mahender Tandon, Sh. Mahender Tandon cannot run away from his liability and involvement in preparation of such forged document.
6.41 I have the benefit of comparing the previous title deeds executed by Sada Nand in favour of Sh. Chaman Lal on 30.3.1963 and I have strong apprehension that even such sale deed Ex.PW19/A (part of D13) furnished by Mahender Tandon as proprietor of M/s Vikrant Equipment India with Central Bank of India, Safdarjang Enclave branch might be forged and fabricated as it does not match with the one which he had furnished with CC no. 13/2011 CBI Vs Mahender Tandon etc 22 of 41 Syndicate Bank and which is Mark PW6/B (D10).
6.42 Forgery is not limited to the sale deed. It also spreads to the audit reports and Saral Form.
6.43 Let me see these also.
6.44 As far as audit reports Mark P4/1 (part of D13) are concerned, these are also found to be forged. Reference be made to the testimony of PW4 Sh. J. M. Pal. He is Chartered Accountant by profession and according to him in the year 2001, 2002 and 2003 he was not operating from Delhi and did not have any office in Delhi and was working from his house situated in Gurgaon. He was working under the name and style of M/s Pal & Associates, Chartered Accountant but never had any office at S14, 4 th Floor, 93 Ashoka Bhawan, Nehru Place. According to him, he had one office at S-1, 4th Floor, Ashoka Bhawan, Nehru Place, New Delhi. It was rented accommodation which he left in 1999-2000. He also claimed that he did not know Mahender Tandon and did not know any firm with the name of M/s Vikrant Equipment India, 60/26, Rajender Jaina Apartments, Prabhat Marg, New Rohtak Road, Karol Bagh, New Delhi. He was shown the balance sheets, trading and profit and loss account statement for the relevant years which were purportedly bearing his signatures and he claimed that none of these balance sheets, forms or statements were containing his signatures, initial or his stamp. Thus he has rejected all such documents Mark P4/1.
6.45 According to Sh. Rakhra, Sh. Pal has unjustifiably disowned these documents. He has also expressed his astonishment as to why the specimen signatures of Sh. Pal were not sent to forensic laboratory.
CC no. 13/2011 CBI Vs Mahender Tandon etc 23 of 41 Admittedly, signatures of Sh. Pal were taken during the investigation and these were not sent to G. E. Q. D. but fact remains that such omission by itself cannot come to the rescue of Sh. Mahender Tandon. I have seen the cross examination of PW4 Sh. J. M. Pal and it is found to be sketchy one. So much so, no suggestion has been put to the effect that these forms, balance sheets and statements were bearing his signatures. Defence is blowing hot and cold. In one breath, it is stated that these are the genuine signatures of Sh. Pal and in the next, it is claimed that Mahender Tandon had simply contacted Mr. Khosla and does not know as to how such documents were got prepared. Be that as it may, fact remains that A1 has not offered any reason as to why a chartered accountant would depose falsely against him more so when there was no animosity between the two.
6.46 As regards Saral Form, it would have been much better had the investigating agency cited any official from income tax department as its witness. I, though, strongly feel that even such Saral Forms having acknowledgment of income tax department were forged and fabricated but this fact could have been established only if some official from income tax department was called with the relevant documents in order to clearly demonstrate that such Saral Forms furnished by Sh. Mahender Tandon with Central Bank of India were not the genuine. I would also like to emphasize about one Saral Form No. 2D i. e. for the assessment year 2002-03. It is at page 681 of D13 and it indicates that such Saral Form was received by income tax department on 10.10.2003 which is not possible by any stretch of imagination as copy of such form was submitted to the bank in April 2003. Thus there was no occasion for possessing any post-dated document having acknowledgment of a governmental agency and manifestly even this document was a forged document. Printing date as appearing on Saral form cannot, without further corroboration, be said to be sufficient to label a CC no. 13/2011 CBI Vs Mahender Tandon etc 24 of 41 document as a forged document and as already noticed above, some official of income tax department should have been examined by prosecution on this score. Thus though there is a strong possibility that such Saral Forms were not genuine yet in view of the non-examination of any official from income tax department, I am not able to hold so effectively and conclusively.
6.47 In view of testimony on record, it becomes very much evident that accused Mahender Tandon was acting in league with accused Deepak Kumar. Accused Deepak Kumar, in pursuance to such conspiracy, prepared forged sale deed for the benefit of accused Mahender Tandon who then, dishonestly and knowingly, submitted the same before the bank. He also deliberately concealed the fact that he had already availed facility from Syndicate bank while pledging the same property. It really does not matter whether previously facility was availed by a different concern as fact remains that both the applications had been signed by accused Mahender Tandon himself. He also did not deliberately mention the name of associate concern. His acts and omissions smack of malafide. He cheated the bank by inducing the bank to release facilities which had been sought on the basis of forged documents. He was the prime beneficiary of such facility and, therefore, he is squarely responsible.
6.48 Sh. Rakhra has also relied upon MD. ABRAHIM & OTHERS VS. STATE OF BIHAR & ANOTHER IV (2009) CCR 2013 SC and on the strength of the aforesaid judgment, it has been claimed that it cannot be said that accused had committed any cheating or forgery. I have seen the aforesaid judgment very carefully and I am of the opinion that keeping in mind the peculiar facts of the present case, defence cannot drive home any advantage out of said judgment as in the present case, A1 had evidently CC no. 13/2011 CBI Vs Mahender Tandon etc 25 of 41 induced the bank to release facilities in his favour on the basis of forged sale deed itself which situation was never there in the afore-referred case.
6.49 Sh. Rakhra has relied upon one Apex Court judgment cited as JOHN PANDIAN & OTHERS VS. STATE 2011 (1) LRC 18 SC and has contended that there is nothing to show criminal conspiracy. I have seen aforesaid judgment which otherwise relates to a case of a murder involving conspiracy. It has been held therein that in order to prove criminal conspiracy, prosecution is required to establish every circumstance and in the absence of convincing evidence, merely on the basis of few bits here and few bits there conspiracy cannot be inferred. Undoubtedly, prosecution is required to stand on its own legs but simultaneously the element of conspiracy is generally inferred on most of the occasions. Here, as already noticed above the forged sale deed was submitted to the bank which even contained the signatures of A1 Mahender Tandon. A1 Mahender Tandon has simply attempted to shift the entire onus onto his co-accused Deepak and one Mr. Khosla which is not digestible. Moreover, he admitted in his statement u/s 313 Cr. PC that the same very property was kept as collateral with Syndicate Bank in which the name of the buyer was shown as M/s Vikrant Scientific Works P. Ltd. He has not come up with any explanation as to how M/s Vikrant Equipment (India) is also claiming its ownership over the same property of which, he himself was proprietor.
6.50 Now, it is to be seen whether, he was having any collusion with bank officials or not.
CC no. 13/2011 CBI Vs Mahender Tandon etc 26 of 41 ROLE AND INVOLVEMENT OF BOTH THE BANK OFFICIALS VIZ SH. R.K. MEHTA AND SH. R.P. DADEECH 7.0 Let me now evaluate whether there is any criminality on the part of said two bank officials or not though I would hasten to append that they both have entered into witness box as defence witnesses and have given elaborate statements. Primarily and principally, they are trying to pass on the buck to each other. According to Sh. Mehta, he had no concern with the preparation of appraisal note as it was not his job whereas according to Sh. Dadeech he had merely sanctioned the loan on the basis of recommendation of Sh. Mehta.
7.1 It is not in dispute that in Safdarjung Enclave Branch, there were three officials in managerial capacity. Accused R.P. Dadeech was the senior most official. He was posted as Senior Manager and was Branch Incumbent. Sh. Ram Pada Mishra (PW2) was second-in-command and was posted as Manager. Such second man is also known as Accountant. Accused R.K. Mehta was posted as Assistant Manager.
7.2 Central Bank of India had come up with a scheme known as Cent Trade Scheme which was aimed at boosting business under trading sector. It permitted overdraft limit upto Rs. 25 lacs per borrower and such limit was to be assessed applying turnover method i.e. 25 per cent of the projected annual sale. Security was to be in the shape of equitable mortgage of non- encumbered residential or commercial or industrial property in the name and possession of borrower. Details of such scheme are found to be in circular Ex. PW5/A. 7.3 Bank was required to collect following details at the time of processing of such application.
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(i) Application form.
(ii) Financial statements (if available).
(iii) Copy of Sales Tax Registration.
(iv) Copies of Sale Tax Return/Assessment orders for last four quarters.
(v) Details of property offered as security with valuation report from
Approved Valuer.
(vi) Credit report from previous banker/mortgage report.
7.4 In the present case, OD limit of Rs. 12 lacs was sanctioned and,
additionally, facility of bank guarantee of Rs. 3 lacs was also extended to the borrower. Fact, however, remains that such facility of bank guarantee was never availed by the borrower and the grant of OD limit of Rs. 12 lacs under Cent Trade Scheme was also within permissible limit.
7.5 Coming to the sale deed of property which was offered for mortgage, it becomes visible that sale deed was submitted to the bank. I have seen the application Ex. PW11/A moved by borrower under Cent Trade Scheme wherein such property has been described as Plot No. E-23, Old Industrial Area, Bahadurgarh having value of Rs. 63,90,000/-.
7.6 Such valuation was done by Sh. V.P. Aneja. His Valuation report has been proved as Ex. PW2/D4C (part of D-13). As per the valuation, property in question was owned by M/s Vikrant Equipment India and was enjoying good locational advantage. According to title deeds examined by the valuer, property was freehold and self occupied which had been acquired in 1993. So much so, valuer had also personally inspected the property on 23.04.2003 and assessed its value as Rs. 51,57,000/- in case the bank was forced to sell the same. It was, naturally, much beyond the OD limit of Rs. 12 lacs.
7.7 It is nobody's case that Sh. Aneja was not approved valuer. Sh.
CC no. 13/2011 CBI Vs Mahender Tandon etc 28 of 41 Aneja has, though, not been cited as witness yet fact remains that prosecution is relying on his report and cannot be allowed to run away from such report.
7.8 It is also nobody's case that such property was not in existence at the given address. As per testimony of PW2 Sh. Ram Pada Mishra, he himself had also accompanied Sh. R.P. Dadeech for the purpose of pre- inspection of the property to be mortgaged.
7.9 It is also nobody's case that such property was not linked with Mahender Tandon at all. Though, certainly, it will be interesting to see whether he owned that as Proprietor of Vikrant Equipment India or whether it was owned by a limited company of which he was Managing Director.
7.10 Another essential aspect happens to be the Legal Search Report of Sh. T. Harish, Advocate.
7.11 When title documents are furnished by any borrower, the bank officials are not always in a position to comment upon the authenticity of same from the bare perusal or naked eyes and in order to establish the genuineness of such documents, therefore, there is a system of obtaining Legal Scrutiny Report or Legal Search Report. Such report is given by an advocate who is on the panel of the bank. In the present matter also, such report was obtained. I have seen report dated 26.04.2003 given by Sh. Harish Tiwari, Advocate. Such report is running into 13 pages. As per such report, Mr. Tiwari had scrutinized all the documents including the all important sale deed dated 06.08.1993 executed in favour of M/s Vikrant Equipment India. Sh. Tiwari opined that equitable mortgage could be created after taking original documents. According to Sh. Harish Tiwari, on careful inspection of CC no. 13/2011 CBI Vs Mahender Tandon etc 29 of 41 the relevant documents supplied to him, he found that property was free from all sorts of encumbrances, mortgage, charge etc. He also claimed that all the title deeds and the previous title deeds were also available in the originals and he also added a note in the report that as per instructions of the bank, he had visited the office of Sub-Registrars of Jhajjar and Bahadurgarh to conduct search and inspection of relevant documents mentioned above. It means that he had visited the office of Sub-Registrars and personally scrutinized the correctness of the sale deed executed by Sh. Sushil Kumar on 29.07.1993 in favour of M/s Vikrant Equipment India.
7.12 I have no hesitation in rejecting such report of Sh. Harish Tiwari, Advocate. Had he actually inspected the documents from the official record, he would have immediately come to know about the forgery? It seems to me that he was least honest and sincere in his job and gave the report without bothering his bones and mind. My such feelings stand strengthened if I refer to the testimony of PW3 Sh. Yogesh Tiwari. He was working as typist with one Mr. Khosla of Kalkaji. Perhaps, he is pointing toward same Mr. Khosla who has been referred by defence time and again. She Yogesh Tiwari also deposed that he knew Harish Tiwari, Advocate who used to meet Mr. Khosla. According to him, Mr. Tiwari himself never asked him to type anything and even the legal scrutiny report dated 26.04.2003 (purportedly issued by Harish Tiwari) had been typed by him on computer as per the direction of Mr. Khosla. Thus, even the legal scrutiny report had been got typed by this mysterious person known as Mr. Khosla and Mr. Harish Tiwari did a mere formality by signing the same.
7.13 There is no doubt that Sh. Harish Tiwari was on the panel of Central Bank of India. This is borne out from the deposition on record. CBI also does not have any disagreement on this score.
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7.14 The concerned bank officials, it appears, did their best.
7.15 The application was before them along with the full description
of the immovable property. Original sale deed had also been furnished. It is practically impossible for anyone to detect any forgery or fraud by naked eyes from the originals. These are required to be correlated and cross-checked with the official record and the panel advocate, who had been hired for such exclusive purpose, confirmed the correctness of sale deed. Report of Sh. Harish Tiwari indicates that he had personally inspected the official record and inspection receipts dated 25.04.2003 are also part of record which are at page 889 & 891 (part of D-13). These are unproved receipts but fact remains that these do indicate that Sh. Tiwari projected as if he had actually gone to the office of Sub-Registrar. The bank had no option but to rely upon the report given by their empanelled advocate. Valuation report of Mr. Aneja also does indicate that property was very much in existence.
7.16 According to prosecution, there was no office of M/s Vikrant Equipment India at 60/26, Rajendra Jaina Apartment, Prabhat Marg, Karol Bagh, New Delhi. However, mere one-line deposition coming from the mouth of investigating officer cannot be said to be sufficient in this regard. It was, after all, a rented accommodation and it was allegedly on rent with M/s Vikrant Equipment India. CBI could have very easily recorded the statement of concerned occupant or landlord in order to establish that someone else was possessing said office premises. Nothing of that sort has been done by CBI. There is not enough material on record to show that the financial report related to Vipul Tandon was false and had been prepared, in dishonest manner, by the bank officials. It is apparent by virtue of one cheque Ex.PW2/DF (page 1039) that M/s Osho Home Appliances was in existence.
CC no. 13/2011 CBI Vs Mahender Tandon etc 31 of 41 Moreover, if CBI wanted to indicate that no such concern was in existence then it should have at least cross checked the record of bank account of said concern maintained with Bank of Punjab, Gujranwala Town, Delhi. No step in that direction was either taken and even Vipul Tandon has not entered the witness box.
7.17 As far as furnishing of audit reports bearing forged signatures of Sh. J.M. Pal is concerned, I am of the view that it is, again, not probable for any bank official to detect forgery merely by perusing such audit reports. Rather, borrower is required to be blamed for such act.
7.18 Moreover, as already noticed above, financial statements were not to be submitted compulsorily. These were to be placed, if available. Thus furnishing of financial statements was optional.
7.19 As regards, Saral form, I have already made reference above that investigating agency should have cited some official from Income Tax Department in order to show that these acknowledgments were bogus or fabricated. Undoubtedly, one such Saral form bears acknowledgment date as 10.10.2003 which was not possible at all. Had both the aforesaid bank officials i.e. Sh. R.P. Dadeech and Sh. R.K. Mehta examined the documents very thoroughly and minutely, they would have also realized something suspicious about Saral form. But, at the same time, merely because they were not attentive and meticulous, criminality cannot be robotically presumed.
7.20 There is huge distance between an act of misconduct and act of criminal misconduct. An act of misconduct remains in the realm of negligence and dereliction of duty alone whereas a criminal misconduct demonstrates malafide and dishonest intention. Here, it seems to me that both the bank CC no. 13/2011 CBI Vs Mahender Tandon etc 32 of 41 officials were touch negligent. There is nothing to indicate that they were acting in league with the borrower. There is no material to even remotely suggest that they had obtained any pecuniary advantage or valuable security for themselves. Rather PW Gurmail Singh has not supported the prosecution theory on this score. There is nothing to indicate that they both had indulged in any corrupt practice. There is nothing to indicate that they had abused or misused their official positions. Merely because they were somewhat casual in accepting the documents, it cannot be deduced that they were acting with criminal intent. Moreover, as already noticed above, they had obtained LSR from empanelled advocate. They had also the benefit of having report of valuer.
7.21 It has also been argued from the side of accused R.P. Dadeech that as Senior Manager, Sh. Dadeech had powers to grant loan upto Rs. 25 lacs under CGTSI - Credit Guarantee Fund Trust for Small Industries and if he had any criminal intention, he would have sanctioned loan of Rs. 25 lacs using his discretionary powers. Such loan could have been advanced without any collateral security and if accused was sharing any dishonest intention with the borrower then instead of asking the borrower to approach the bank under Cent Trade Scheme, he would have sanctioned loan of Rs. 25 lacs without any security.
7.22 I would also like to mention that according to CBI, when it was found that borrower had played fraud, another Legal Search Report was obtained through Sh. Yogesh Pachori who confirmed that documents furnished by the borrower with Central Bank of India were forged.
7.23 To my utter dismay, neither such report of Sh. Yogesh Pachori has seen the light of the day as it is not part of record. So much so, Sh.
CC no. 13/2011 CBI Vs Mahender Tandon etc 33 of 41 Pachori has not even been cited as prosecution witness. I have not been able to fathom reason for holding back such all important report of Sh. Pachori.
7.24 I have seen the deposition of all the other bank officials of Central Bank of India.
7.25 PW1 Ravinder Kumar Khanna happens to be the complainant but he was admittedly not posted in the Branch at the relevant time and his deposition is based on record only.
7.26 I would again lay emphasis that it has not been made clear by CBI as to why Sh. Harish Tiwari was not sent up to face trial. If bank officials were having any criminal intention, then can Sh. Harish Tiwari be left behind? Answer has to be in emphatic 'no'. He claimed that he had examined the official record and found the sale deed genuine. Mere receipts showing name of Harish Tiwari would not establish that he had actually visited there and inspected the record. For some unknown reasons, he has chosen to give a false report which admittedly persuaded the bank to believe the genuineness of sale deed. Mr. Tiwari should feel himself fortunate that CBI let him off the hook without any rhyme or reason.
7.27 It also becomes apparent that when credit facilities were sought by M/s Vikrant Equipment India, it revealed the name of its previous banker and also furnished statement of account of such banker. Sh. Khanna has also admitted that any bank official can rely upon the report of bank appointed valuer and loan is sanctioned keeping in mind the report of valuer. He also admitted that original title deeds were taken on record at the time of creating equitable mortgage.
CC no. 13/2011 CBI Vs Mahender Tandon etc 34 of 41 7.28 I have seen the entire testimony of PW2 Ram Pada Mishra and
in his examination-in-chief, he nowhere claimed that any of the bank officials i.e. either Mr. Dadeech or Mr. Mehta were at fault while preparing the appraisal note or while sanctioning the limits.
7.29 PW2 Ram Pada Mishra is the one who had actually created the mortgage as in his note dated 01.05.2003, he mentioned that accused Ma- hender Tandon had come to bank to deposit the title deeds and such mort- gage was created by him (Sh. Ram Pada Mishra). He also claimed in his cross-examination that R.P. Dadeech had not asked him to give any favour to the borrower and he himself also did not find anything fishy. He rather volun- teered that Sh. Dadeech had disbursed the loan after examining all the docu- ments. He also deposed that there were no written guidelines for verification of the property except through physical verification or through panel advocate/valuer. He admitted that there were no guidelines insisting for ob- taining certified copies of the title documents from the office of Sub-Registrar before disbursing or sanctioning the loan. So much so, he deposed that it was correct that if the reports of panel advocate and panel valuer were posi- tive, then such fact coupled with the physical inspection was sufficient for the Branch Manager to believe the genuineness of the title of the property and Branch Manager was well within his discretion to sanction and disburse the loan. He also claimed that Sh. R.K. Mehta, as Processing Officer, was only to present the facts to Senior Manager. Though he claimed that Branch was un- der-staffed and officers were overburdened yet I feel that such fact cannot ab- solve any branch official. No one can be permitted to take shelter behind such excuse. Moreover, whenever there is any financial implication, such job rather becomes much more onerous and answerable.
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7.30 PW5 S. S. Sheokhand has deposed that Cent Trade Scheme
was for giving facilities to traders, retailers, commission agents etc. Accord- ing to him, if the branch is headed by Scale -III officer, the accountant would be a Scale-II officer and such accountant would be responsible for processing the proposals.
7.31 PW7 Parmod Sharma has tried to come to the rescue of accused Sh. R. K. Mehta by claiming that Sh. Mehta used to work from 9 AM to 3 PM in connection with public dealings. I have, however, already discussed above that merely because any officer is over-burdened would not imply that he could over look the essential aspects of any mater involving financial implication.
7.32 It would be also significant to take note of the fact that both the bank officers were also taken to task at the departmental level. Disciplinary proceedings were initiated against both of them.
7.33 PW8 Pashupati Nath Gupta has entered into witness box who was Presenting Officer in such departmental enquiry. He deposed that as per the outcome of the departmental enquiry, Sh. R. P. Dadeech was dismissed and salary of R. K. Mehta was reduced by 3 increments.
7.34 As per enquiry report pertaining to Mr. Mehta, it was held that M/s T. Harish Associates was on the panel of the bank and that letter of intention to create equitable mortgage was to be ensured by the disbursing authority i. e. R. P. Dadeech and not by the processing officer i. e. R.K. Mehta. It was, however, held that Sh. Mehta failed to detect and point out the discrepancies related to the name of previous banker and also did not point out that the name of borrower Mahender Tandon was mentioned as CC no. 13/2011 CBI Vs Mahender Tandon etc 36 of 41 Mahender Arya in PAN Card. It was also held that Sh. Mehta did not mention the date of his visit to the property of Bahadur Garh. Thus, even at the departmental level, very inconsequential and insignificant irregularities on the part of Sh. Mehta were found existing.
7.35 As far as enquiry report of accused R. P. Dadeech is concerned, such report has been proved by accused R. P. Dadeech when he got himself examined as DW2. Mark DW2/B be referred to in this regard. It is important to mention that R. P. Dadeech was facing departmental action with respect to various other cases also. However, with respect to departmental action related to M/s Vikrant Equipment India, the charges were not proved at all. He might have been dismissed but his such dismissal has nothing to do with the allegations with which he has been charged in the present case. Enquiry report related to M/s Vikrant Equipment India makes reference to various irregularities like obtaining LSR from advocate who was not on the panel of the bank, accepting inflated value of property, non identification of previous banker etc. Enquiry Officer, however, held that Sh. Harish Tiwari was on the panel of the bank and the approved valuer had assessed the valuation at Rs. 57.51 lacs and the bank official could not be held accountable for the same. It was also observed that in the application form, name of the previous banker was mentioned as Vaish Cooperative Bank and, therefore, the negligence in this regard was also not established. It was also held that recital register was signed by Mr. Mishra and not by Dadeech and, therefore, the onus of taking of letter of intention to create equitable mortgage was on Mr. Mishra and not on Sh. Dadeech. It was also held by enquiry officer that Money Multiplier Deposit Certificate (MMDC) (another term for FDR) had been taken and was even credited to the account and, therefore, the delinquent official i. e. Sh. Dadeech was exonerated for said charge also. Enquiry officer also concluded that though the title deed deposited with the bank was found to be CC no. 13/2011 CBI Vs Mahender Tandon etc 37 of 41 fake yet the property was in existence though it was already mortgaged to other bank. It was also mentioned that even the LSR certified the clear title and, therefore, no negligence, on that score, was also proved. Accordingly, with respect to the alleged irregularities related to account of M/s Vikrant Equipment India, Sh. Dadeech was exonerated at the departmental level though he was dismissed ultimately since his involvement in other cases stood proved.
7.36 I need not remind myself that the standard of proof for proving any criminal charge is much more rigorous as the prosecution is duty bound to prove its case beyond reasonable doubt whereas departmental inquiry is conducted on a different footing and pedestal where the yardstick is of preponderance of probabilities. If the department could not prove its case against Sh. Dadeech even at the departmental level then the criminal prosecution, on same facts and allegations, is liable to fall short.
7.37 Be that as it may, even if I do not give any substantial weight to the enquiry reports, the material which has been placed before the court does not reflect any criminal intention on the part of any of the aforesaid two bank officials i. e. Sh. Dadeech and R. K. Mehta. They can be said to be neglectful, casual, injudicious and incautious. Element of dishonest intention or acting in collusion with borrower is unmistakably missing.
7.38 It also cannot be forgotten that banking business is, at times, done by taking calculated risk. It is not always essential that in every case where facilities are granted with complete exactitude and watchfulness, the account would never turn bad. Vice versa, even where there are serious lapses, deliberate or otherwise, the bank may end up making profits.
CC no. 13/2011 CBI Vs Mahender Tandon etc 38 of 41 7.39 In that peculiar backdrop, I would say that there prosecution has
not been able to garner sufficient material to make out any case against any of the bank official.
CONCLUSION 8.0 In view of my said discussion, I hereby acquit both the bank officials i.e. accused R.K. Mehta and accused R.P. Dadeech of all the charges leveled against them.
8.1 No order is required to be passed qua Deepak who is now no more.
8.2 However, as far as accused Mahender Tandon is concerned, CBI has been able to prove his involvement.
8.3 Sh. Rakhra has fervently contended that entire outstanding has already been cleared and, therefore, now he cannot be hauled up for offence of cheating which is even otherwise compoundable in nature.
8.4 I, however, do not find any merit in such contention.
8.5 Such re-payment might be a mitigating circumstance while considering quantum of sentence but cannot wipe out the wrongs committed by borrower.
8.6 Moreover, bank was primarily bothered about its dues and mere fact that there was some settlement and payment was made by the borrower would not automatically imply that offence of cheating evaporates altogether. I CC no. 13/2011 CBI Vs Mahender Tandon etc 39 of 41 am also mindful of the fact that element of criminal conspiracy (along with accused Deepak) and forgery are also found made out which are non- compoundable in nature. Moreover, there is no application from the bank praying for compounding of offence of cheating either.
8.7 Moreover, reference in this regard be also made to one recent judgment of our own High Court reported as KRANTA AAKASH @ PRAKASH KUMAR VS. STATE & ANOTHER 2013 II AD (DELHI) 46. Said case also related to offences u/s 420, 468 and 471 IPC and accused had, for the purposes of cheating, used a forged document as genuine. In that case also, compromise was arrived at and payment was made and the parties chose to seek quashing of FIR. Such request was, however, disallowed holding that merely because the payment had been made did not form ground for quashing of FIR because the dispute in question, by any stretch of imagination, could not be said to be either a civil dispute arising out of some commercial transaction or a dispute, personal in nature. It was also echoed that if FIR in such type of matter was quashed, it would not be for securing ends of justice and rather it would be giving impetus not only to the accused therein but to other such like-minded person that they could get away by committing serious offence merely by making payment later on.
8.8 Merely because, on one occasion, at later stage, accused Mahender Tandon had prayed that account be transferred to his place i.e. Baddi would not absolve him. In such type of matters related to cheating, intention is to be seen at the time of inception and the commission of the act. His association with Deepak also stands established conclusively in view of report of GEQD. Meeting of minds can be easily inferred and it cannot be said that any link, for proving complicity of accused Mahender Tandon, is missing.
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8.9 In view of my foregoing discussion, I hold accused
Mahender Tandon guilty for commission of offences u/s 120B IPC, 420 read with 120 B IPC, 468 read with 120B IPC, 471 read with 120B IPC and also for substantive offences u/s 420 and 471 IPC. He stands convicted accordingly.
Announced in the open Court On this 3rd April of 2013.
(MANOJ JAIN)
Special Judge (PC Act) (CBI)
South Distt: Saket Courts: New Delhi
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CC No. 13/2011
CBI Vs. Mahender Tandon etc
Thursday, April 4, 2013
Present: Sh. Jagbir Singh, learned SPP for CBI.
Convict Mahender Tandon with Sh. Anil Rakhra, learned counsel Other two acquitted accused with respective counsels.
1 Bonds u/s 437 A Cr. PC have been furnished by both the acquitted accused i. e. A3 Sh. R. K. Mehta and A4 R. P. Dadeech. Accepted. Their previous bail bonds are cancelled and previous sureties are discharged.
2 Heard arguments on sentence from Sh. Rakhra and Sh. Jagbir Singh.
3 Sh. Rakhra has asserted that convict is rather a victim of circumstances as he had merely contacted one Mr. Khosla on the basis of some advertisement and never forged any document himself. Maximum stress has been laid on the point of entire repayment having been made already. It has also been additionally contended that convict, an ailing man in his sixties, has no previous bad antecedents and is facing agony of trial since 2008. It has been strongly canvassed that benefit of probation should be extended to him. It has also been claimed that the court should adopt reformative approach as even otherwise convict is now in business of providing mobile medical unit in Jammu and has employed more than 80 workers and in case, convict is sent to jail then such 80 workers would also be losing their livelihood.
4 Sh. Jagbir Singh, learned SPP for CBI has refuted all the aforesaid contentions and has contended that convict does not deserve any CC no. 13/2011 CBI Vs Mahender Tandon etc 42 of 41 mercy on account of repayment as he cheated bank by securing facilities on the basis of forged documents. He lays stress that while considering quantum of sentence in Bank fraud cases, factor of 'general deterrence' be kept in mind which discourages people who would be tempted to defraud feeling that they would get away with low sentence which would be a lucrative bargain by spending few months in jail and in lieu making fortune.
5 There is generally interminable debate as to which theory of sentencing should be applied in any given case - reformative, deterrent, retributive or preventive.
6 As Justice Krishna Iyer once aptly remarked," Guilt once established, the punitive dilemma begins" (Ediga Annamma Vs. State of AP 1974 Cr.L.J. 683 SC) 7 I am very much alive and conscious of the fact that entire loss has been made good by the convict albeit belatedly.
8 Amount in question is also not very huge but since public money is found involved, it certainly is not a case of probation.
9 If repayment is a mitigating factor, I have to also keep in mind the fact that convict chose to obtain facilities by submitting forged sale deed.
10 Keeping in mind the overall facts of the case and taking stock of mitigating and aggravating circumstances, I sentence convict as under:
(i) For offence u/s 120B IPC, SI for six months and fine of Rs.5,000/- in default thereof SI for a period of one month.
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(ii) For offence u/s 420 read with section 120B IPC, SI for two
years and fine of Rs. 15,000/- in default thereof, SI for a period of three months.
(iii) For offence u/s 468 IPC r/w Section 120B IPC, SI for one year and fine of Rs. 15,000/- in default thereof, undergo SI for a period of three months.
(iv) For offence u/s 471 IPC r/w Section 120B IPC, SI for one year and fine of Rs. 15,000/- in default thereof, SI for a period of three months.
(v) For offence u/s 420 IPC, RI for three years and fine of Rs.
25,000/- in default thereof SI for a period of six months.
(vi) For offence u/s 471 IPC, RI for one year and fine of Rs.
25,000/- in default thereof SI for a period of three months.
11 All the sentence would, however, run concurrently.
12 Needless to say that convict would be entitled to benefit of Section 428 Cr.P.C.
13 He be sent to jail under appropriate warrants to serve the sentence.
14 A copy of judgment and order on sentence be supplied to convicts free of cost.
15 Ahlmad is directed to paginate and book-mark for digitization purpose.
16 File be consigned to Record Room.
CC no. 13/2011 CBI Vs Mahender Tandon etc 44 of 41 Announced in the open Court On this 4th day of April, 2013. (MANOJ JAIN) Special Judge (PC Act) (CBI) South Distt: Saket Courts: New Delhi CC no. 13/2011 CBI Vs Mahender Tandon etc 45 of 41