CRA No.519-SB of 1998 v. State of Punjab & Anr.

Judgment

1. This judgment of mine shall dispose of three criminals appeals, namely, CRA No.519-SB of 1998, CRA No.534-SB of 1998 and CRA No.535-SB of 1998 for having arisen from the common judgment and order dated 4.06.1998 passed by the learned Special Judge, CBI, Patiala (hereinafter as 'trial Court'). However, the facts are being derived from CRA No.519-SB of 1998.

2. The present criminal appeals have been preferred by the accused, namely, Jatinder Pal, Kirti Kumar Anand and Bhupinder Singh, challenging the judgment and order of the trial Court, convicting them (the accused- herein the appellants) for commission of offences punishable under Section 120B IPC read with Section 420, 465, 471 of IPC and under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947 and sentenced them to the following effect:- Jatinder Pal U/s 120-B IPC Section 420 IPC To undergo RI for one year and to pay Rs.1000/- as fine and in default of payment of fine, to undergo RI for six months. U/s 420 IPC To undergo RI for six months and to pay Rs.500/- as fine and in default of payment of fine to undergo RI for three months. U/s 465 IPC To undergo RI for one year and to pay Rs.500/- as fine and in default of payment of fine to undergo RI for three months. CRA No.519-SB of 1998, CRA No.534-SB of 1998 and CRA No.535-SB of 1998 -3- U/s 471 IPC To undergo RI for one year and to pay U/s 5(1)(d) read with Section 5 (2) Prevention of Corruption Act, 1947. U/s 120-B read with Section 420 IPC Kirti Kumar Anand Rs.500/- as fine and in default of payment of fine, to undergo RI for three months. To undergo RI for 1 ½ years and to pay Rs.500/- as fine and in default of payment of fine to undergo RI for three months. To undergo RI for one year and to pay Rs.1000/- as fine and in default of payment of fine to undergo RI for six months. U/s 420 IPC To undergo RI for six months and to pay Rs.500/- as fine and in default of payment of fine, to undergo RI for three months. U/s 465 IPC To undergo RI for one year and to pay Rs.500/- as fine and in default of payment of fine, to undergo RI for three months. U/s 471 IPC To undergo RI for one year and to pay Rs.500/- as fine and in default of payment of fine, to undergo RI for three months. U/s 5(1)(d) read with Section 5 (2) Prevention of Corruption Act, 1947. To undergo RI for one year and to pay Rs.500/- as fine and in default of payment of fine, to undergo RI for three months. CRA No.519-SB of 1998, CRA No.534-SB of 1998 and CRA No.535-SB of 1998 -4- Bhupinder Singh U/s 120-B IPC Section 420 IPC To undergo RI for one year and to pay Rs.5000/- as fine and in default of payment of fine, to undergo RI for six months. U/s 420 IPC To undergo RI for six months and to pay Rs.500/- as fine and in default of payment of fine to undergo RI for three months U/s 465 IPC To undergo RI for one year and to pay Rs.500/- as fine and in default of payment of fine, to undergo RI for three months. U/s 471 IPC To undergo RI for one year and to pay Rs.500/- as fine and in default of payment of fine, to undergo RI for three months. All the substantive sentences of imprisonment were ordered to run concurrently.

The brief facts of the case, as set up by the prosecution in para 2 of the impugned judgment, reads as under:- “2. Brief facts of the case are that accused Jatinder Pal was posted as Manager, Oriental Bank of Commerce (O.B.C. for short), civil lines, Amritsar, during the month of November, 1980, while accused Kirti Kumar Anand working as accountant in the same Bank. On the basis of reliable information received by Superintendent of Police, DSPE, Chandigarh, he got this case registered as contained in photocopy of FIR Ex.PW34/1 on CRA No.519-SB of 1998, CRA No.534-SB of 1998 and CRA No.535-SB of 1998 -5-

15.9.1983. The information was that accused Jatinder Pal while working as Branch Manager, Oriental Bank of Commerce, Civil Lines, Amritsar, advanced a loan of Rs.1,50,000/- to one Des Raj son of Bishan Mal, resident of Village Ganda Singh Wala, Amritsar for the purchase of truck No.PUU-7098, in November,

1980. This loan was given to Des Raj on 27.11.80, under the guarantee of Gurwinder Singh, resident of Guru Nanak Avenue, Amritsar and Manjit Singh of village Tungwala, Amritsar. The information further revealed that the documents prepared in connection with the loan, showed truck no.PUU-7098, registered with the Registering Authority, Motor Vehicles, Amritsar and that the lien of the truck had been shown to be marked on the vehicle of the said Transport Authority. These documents were alleged to be fabricated, since no such vehicle was reported to be registered with the Registering Authority, Amritsar and that Vehicle No.PUU-7098, related to Registering Authority, Faridkot. It was also alleged that vehicle No.PUU-7098 was registered with the Registering Authority, Faridkot in the name of one Des Raj son of Bishna Mal, resident of Bagha Purana and was under hypothecation of Bank of India, Mai Hiran Gate, Jalandhar. The vehicle in question was financed by Bank of India, Mai Hiran Gate, Jalandhar, to the tune of Rs.1,03,000/- to said Des Raj son of Bishana Mal on 11.3.80 and the loan was completely paid on 2.6.81. The vehicle was registered in Faridkot District and the lien of Bank of India was got marked on the vehicle in the records of the Registering Authority, Faridkot. CRA No.519-SB of 1998, CRA No.534-SB of 1998 and CRA No.535-SB of 1998 -6- Des Raj, the actual purchaser of vehicle No.PUU-7098, did not take any loan from Oriental Bank of Commerce, Civil Lines, Amritsar, but he took the loan from Bank of India, Jalandhar City. The loan documents prepared in Oriental Bank of Commerce, Civil Lines, Amritsar, contained a photograph, attested to be of Des Raj by Jatinder Pal Accused, was different from that of actual Des Raj, purchaser of vehicle No.PUU-7098. It was further alleged that in pursuance of the fraudulent transaction of truck loan, another account was opened in Oriental Bank of Commerce, Amritsar, in the name of Des Raj son of Bishan Mal, although one account in his name already existed in the same bank. The loan amount of Rs.1,50,000/- thus advanced was remitted in the account opened later on on

27.11.80 and on the same date, this amount was withdrawn under bearer cheque, by one of the associates of the guarantors. Though accused Jatinder Pal as Manager of the Bank was required to credit the loan amount to the Seller's bank, but he in conspiracy of guarantors and unknown person (borrower) credited the loan amount in the account of some fictitious Des Raj and was allowed to be withdrawn by someone else, contrary to the bank rules. The above information, which was made the basis for the present case, thus disclosed that accused Jatinder Pal in conspiracy with Gurwinder Singh and Manjit Singh accused and unknown persons, fabricated documents & used the same, in order to obtain undue pecuniary advantage illegally and by abuse of his official position as public servant in his capacity as CRA No.519-SB of 1998, CRA No.534-SB of 1998 and CRA No.535-SB of 1998 -7- Bank Manager to himself or to any other person, amounting to offences under sections 120-B, 471 IPC and Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947.”

4. Subsequently, during the course of investigation of the case, it revealed that accused Jatinder Pal, Kirti Kumar Anand, Manjit Singh, Gurwinder Singh, Bhupinder Singh and Parbhash Chand Jain entered into a criminal conspiracy to cause a loss of Rs.1,50,000/- to the bank had advanced a loan to a bogus person named Des Raj, and, thus committed the offences under Sections 420, 471 read with 120-B IPC and Section 5(1)(d) read with 5(2) of the Prevention of Corruption Act, 1947. Necessary sanction for prosecuting the accused was also sought from the competent authority and the sanction orders Ex.PW35/1 and Ex.PW35/2 were filed along with final report under Section 173 Cr.P.C. On its basis, charge was framed against the accused vide order dated 8.3.89 under Section 120-B, 420, 471 IPC and Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947.

5. To substantiate the charge against the accused persons, the prosecution examined as many as 38 witnesses. Harbans Singh, Postman, Beat No.23, Post Office, Golden Temple, Amritsar, as PW1, proved his report on the Spare Parts, Katra Sher Singh, Amritsar was not located on the given address on his visit to deliver registered letter dated 25.6.85. Attesting witness-Amrit Rai, Chief Manager, Oriental Bank of Commerce (for short 'the Bank'), Head Office, E Block, Delhi as PW2, proved Seizure Memo Ex.PW2/1 vide which he produced letter Ex.PW2/2 regarding appointment of Jatinder Pal accused as an Officer in Oriental CRA No.519-SB of 1998, CRA No.534-SB of 1998 and CRA No.535-SB of 1998 -8- Bank of Commerce, letter dated 20.3.78 (Ex.PW2/3) regarding posting of accused Jatinder Pal at Civil Lines Branch, Amritsar Branch, and letter dated 20.4.83 regarding posting order of accused Jatinder Pal as Manager Sri Nagar Branch of the Bank. Mehar Singh, Despatcher, CBI Office Chandigarh, as PW3, deposed about the desptach of letter Ex.PW3/1 addressed to M/s Telco Body Builders and Spare Parts, Katra Sher Singh, Amritsar, which was returned by the Postman as undelivered. During investigation, this letter was handed over to the Investigating Officer. Gulzar Mabik, Postman No.4, Golden Temple Post Office, Registry Branch, Amritsar, as PW4, who was entrusted letter Ex.PW1/1 for delivery but as the address in question did not exist, the made report Ex.PW4/1 regarding non-delivery of the same. Rajiv Bhaskar, Clerk, Canara Bank, Gopal Nagar, Amritsar, as PW5, who handed over the copy of accounts statement Ex.PW5/1 pertaining to M/s Telco Body Builders and Spare Parts, Katra Sher Singh, Amritsar from 23.6.1980 to 24.12.1980. S.M. Midha, Assistant General Manager, Oriental Bank of Commerce, Patiala, as PW6, deposed that during the year 1984-85, while he was posted as Regional Manager, Oriental Bank of Commerce, the accused Jatinder Pal joined as Manager, Oriental Bank of Commerce, Civil Lines, Amritsar, in the month of April, 1978 and was transferred to Regional Office, Amritsar in 1982. He also attested Seizure Memo Ex.PW6/1 vide which the documents mentioned therein relating to the loan case of Des Raj were taken into possession. He also informed about the set procedure to be followed for the truck loan. He also deposed that according to the record, CRA No.519-SB of 1998, CRA No.534-SB of 1998 and CRA No.535-SB of 1998 -9- loan to Des Raj was sanctioned by accused Jatinder Pal and he has sent the action for confirmation to the Regional Office, which was confirmed by the Regional Manager, SM Malhotra, through letter Ex.PW6/2. He also proved letter Ex.PW6/3 vide which accused Jatinder Pal was transferred and posted at Siri Nagar and another letter Ex.PW6/4 written by Shri S Mallan to the Regional Manager. He also deposed that loan proposal Ex.PW6/5 was sent by Jatinder Pal accused along with forms No.185 Ex.PW6/6, Ex.PW6/7 and Ex.PW6/8, which all bear the signatures of Jatinder Pal accused as Manager. Kewal Mehra, Taxation Inspector, Katra Sher Singh, Ward No.5, PW7, deposed that there was no firm in the name and style of M/s Telco Body Builders and Spare Parts, Katra Sher Singh, Amritsar, during the year 1980-81. He proved letter Ex.PW7/1 written by the Assistant Excise and Taxation Commissioner to the Deputy Superintendent of Police, CBI, Chandigarh, to this effect. He identified signatures of Shri Amarjit Singh Chopra, Assistant Excise and Taxation Commissioner on letter Ex.PW7/1. Jasminder Singh, Divisional Manager, United India Insurance Co. Ltd., Divisional Office No.2, Sial House, Jalandhar as PW8. He has proved his initials on the Insurance Policy Ex.PW8/1, Certificate of Insurance Ex.PW8/2, Cover Note Ex.PW8/3 and also receipt Ex.PW8/4. He stated that premium of the policy was received from the bank, on whose guarantee, the cover note was issued. Attesting witness, Vijay Shankar, Assistant Regional Manager, Oriental Bank of Commerce, as PW9, who was posted at Amritsar Branch from February 1984 to March 1985, proved signatures of Satinder Pal- accused on Seizure Memos, Ex.PW9/1 and Ex.PW9/2; Transfer Credit Voucher, Ex.PW9/3; Credit voucher, Ex.PW9/4; and Debit Transfer CRA No.519-SB of 1998, CRA No.534-SB of 1998 and CRA No.535-SB of 1998 -10- Voucher Ex.PW9/5. He has further identified signatures of V K Mallan on the Accounts Statement of Des Raj, Account No.1491, Ex.PW9/6 and signatures of the accused on Debit Transfer Voucher, Ex.PW9/7; Credit Voucher Ex.PW9/8 and Debit Voucher, Ex.PW9/9. H D Ganganei, Deputy Chief Manager, Oriental Bank of Commerce, New Delhi as PW10 has produced copy of the books of instructions Part II, Chapter No.9, pages 54 to 80, as Ex.PW10/1. Ramesh Malhotra, Officer, Canara Bank, Divisional Office, Amritsar as PW11. He was the Manager of Laxmi Commercial Bank, Branch at Village Bhura-Kona and he allowed opening form Ex.PW11/1 which was filed by him in his hand. It was signed by accused Bhupinder Singh and also by introducer Gurwinder Singh. Onkar Nath, Clerk, District Transport Officer, Amritsar, PW12, has proved the attested copy of entry Ex.PW12/1, vide which a Driving Licence of Motor-cycle and Motor-car was issued in favour of Anil Bhatia on 2.7.1964 and no driving licence was issued to any Des Raj against this entry. Balkar Singh, Patwari, Halqa Ibankala, Tehsil and District Amritsar, PW13, has proved the photocopy of the Jamabandi for the year 1976-77 mark PW13/A. The land mentioned in this document belonged to Harbans Singh son of Jhanda Singh and not to any Des Raj, as per original Jamabandi for the year 1977-78 brought by him in the Court. He also stated that as per record, there are no signatures of Anoop Raj, Patwari, on the Jamabandi Mark PW13/A being different as compared with his signatures on the Jamabandi brought by him. R K Ahuja, PW14, is an attesting witness of the seizure Memo CRA No.519-SB of 1998, CRA No.534-SB of 1998 and CRA No.535-SB of 1998 -11- Ex.PW14/1, vide which various documents mentioned therein were taken into possession. He also identified signatures of Y.P. Mangal on the Account Opening Form Ex.PW14/2 and S S Arora, Manager on the cheque Ex.PW14/3. Inderjit Singh Salooja, Manager, Oriental Bank of Commerce, Branch Office, Panka Kalla, District Amritsar as PW15. He identified the signatures and writing of accused Jatinder Pal and K K Anand on the letter regarding loan proposal of Des Raj Ex.PW15/1, loan proposal Ex.PW15/2, Credit reports Ex.PW6, Ex.PW6/7 and Ex.PW6/8, Credit Vouchers Ex.PW9/4, Ex.PW15/3, Ex.PW9/3, Ex.PW9/5, Ex.PW9/7, Ex.PW9/8, Ex.PW9/9, Ex.PW15/5, demand note Ex.PW15/6 letter of waiver, transfer voucher Ex.PW15/7, Guarantee form Ex.PW158, hypothecation deed Ex.PW15/9, account opening form Ex.PW15/10, transfer vouchers Ex.PW15/11 to Ex.PW15/13 and letter Ex.PW15/14. Dev Raj Gupta, Senior Manager, Oriental Bank of Commerce, Phagwara, as PW16 is an attesting witness of Seizure Memo Ex.PW16/1 vide which the documents mentioned therein were taken into possession. Umesh Bhatia, Officer, Canara Bank, Miller Ganj, Ludhiana, as PW17 in whose presence, specimen signatures of Bhupinder Singh accused were taken on 21.9.85. S P Bhatia, Senior Manager, Oriental Bank of Commerce, Tarn Taran, as PW18, had produced the documents mentioned in Seizure memo Ex.PW18/1 which was attested by him. D P Gupta as PW19, had produced various documents before the Investigating Officer, which were taken into possession vide Memo Ex.PW19/1. He has also stated about the procedure to be followed in the CRA No.519-SB of 1998, CRA No.534-SB of 1998 and CRA No.535-SB of 1998 -12- case of loan for the purchase of a new truck. He proved the signatures/handwriting of accused Jatinder Pal on debit voucher Ex.PW9/5, Ex.PW9/3, Guarantee forms Ex.PW15/8, Ex.PW15/6, Ex.PW15/5 and Ex.PW15/4 and identified the handwriting of accused Kirti Kumar Anand on Ex.PW15/14, signatures of V K Mallan, Ex.PW19/2, Ex.PW19/3 and Ex.PW19/4. He stated that loanee Des Raj was never seen by him in the bank. Rejinder Pal, Clerk, Canara Bank, PW20, identified Bhupinder Singh in the Court and stated that Bhupinder Singh had presented and signed on the back of the cheques. J K Chabria, General Manager (Sales), P.S. Jain Motors, as PW21, deposed that the bill Mark PW21/A was not of M/s. P S Jain Motors and also denied that the bill bears the signatures of any of the officials of the firm. He further deposed that he knew accused-Des Raj who used to sign in Urdu and not in Hindi or Punjabi and that the address given in bill mark PW21/A is incorrect. He identified signatures of Des Raj on hypothecation deeds Ex.PW21/2, Ex.PW21/3 and Ex.PW21/4, and stated that sale letter Ex.PW21/5 and Cash receipt Ex.PW21/6 have been issued by P.S. Jain Motors. Pawan Kumar Bhasin, Deputy Chief Manager of the Bank, as PW22 and produced the documents mentioned in Seizure Memo Ex.PW22/1 and proved copy of appointment letter of Kirti Kumar Ananad as Ex.PW22/2. Kamaljit Singh, Branch Manager, Civil Lines, Oriental Bank of Commerce, Amritsar, as PW23, produced and attested documents as mentioned in Seizure Memo Ex.PW23/1, signatures of Kirti Kumar Anand CRA No.519-SB of 1998, CRA No.534-SB of 1998 and CRA No.535-SB of 1998 -13- on Account opening form Ex.PW15/10 and signatures of Jatinder Pal on Ex.PW15/11, Ex.PW15/12 and Ex.PW15/13. Haridev Dhawan, Officer, Oriental Bank of Commerce, G.T. Road Branch, Jalandhar, PW2, has proved the signatures of Des Raj on account opening form Ex.PW15/10, which was attested by accused as Branch Manager who had also signed the loan proposal Ex.PW6/5 and forwarding letter Ex.PW15/1 and also credit reports Ex.PW6/, Ex.PW6/7 and Ex.PW6/8, which also bear the signatures of Kirti Kumar Anand. He could not say as to who had filled the transfer voucher Ex.PW9/4. Mohinder Singh, Registration Clerk, MVI Amritsar, as PW25, stated that truck No.PUU-7098 was not registered at Amritsar as PUU series was never allotted in Amritsar District. G S Sahni, Sub Divisional Officer, Asstt. Defence Estate Officer, as PW26, proved specimen signatures of Jatinder Pal-accused in the specimen signature sheets Ex.PW26/1 to Ex.PW26/26. Dharam Pal Singh, Clerk, Record Room Judicial, Amritsar, as PW27, who did not produce the summoned record from him, therefore, was examined without oath. D S Mann, DSP, CBI, as PW28, who simply prepared the challan after scrutinizing the evidence collected by various Investigating Officers. N C Sood, Deputy Government Examiner of Questioned Document, as PW29, had examined the questioned signatures/writing of Jatinder Pal, Kirti Kumar Anand, Manjit Singh and Bhupinder Singh- accused, with their specimen admitted signatures and submitted his reports Ex.PW29/4 and Ex.PW29/5 with reasons contained in Ex.PW29/6 and Ex.PW29/7. CRA No.519-SB of 1998, CRA No.534-SB of 1998 and CRA No.535-SB of 1998 -14- P K Upadyai, Clerk-cum-Cashier, Oriental Bank of Commerce, Branch Office Aminabad, Lucknow, PW30, proved specimen signatures of accused-Kirti Kumar Anand on Ex.PW30/1 and Ex.PW30/2 and specimen handwriting sheets Ex.PW30/3 to Ex.PW30/6. Ved Parkash Walia, Retd. DSP, PW31, proved documents in Seizure Memos Ex.PW14/1 and Ex.PW20/1. Kishan Chand, Retd. Inspector, as PW32, who had partly investigated the case and recorded the statement of J K Chhabria. R S Bindra, Asstt. General Manager, Oriental Bank of Commerce, Patiala, as PW33, proved the signatures of accused Jatinder Pal on Ex.PW15/3, Ex.PW15/11 and also of accused Kirti Kumar Anand on Ex.PW15/12 and Ex.PW15/13. He further deposed that S P Sareen was posted as Loan Manager in the Regional Office, Amritsar. He further stated that a request was received from Jatinder Pal-accused to confirm his action regarding the disbursement of loan to Des Raj but he objected to the conformation as the pre-requisite conditions were not fulfilled. However, despite his objection, the action was confirmed by his senior and the amount of Rs.1,50,000/- was credited to the account of Des Raj, Account No.1491 as per Ex.PW9/4 though as per procedure, the amount should have been paid directly to the supplier. Didar Singh, DSP, as PW34, is the Investigating Officer who was then posted as Inspector of the CBI, Chandigarh, while investigating the case, recorded the statements of the witnesses and took into possession various documents vide various Seizure Memos Ex.PW9/1, Ex.PW9/2, Ex.PW16/1, Ex.PW18/1, Ex.PW19/1, Ex.PW22/1, Ex.PW23/1, Ex.PW34/1, Ex.PW34/5 and Ex.PW34/6. He obtained specimen signatures of accused CRA No.519-SB of 1998, CRA No.534-SB of 1998 and CRA No.535-SB of 1998 -15- Gurwinder Singh, Bhupinder Singh, Manjit Singh and Jatinder Pal. He also took specimen signatures and handwriting of accused Kirti Kumar Anand. These documents along with specimen signatures and handwriting of the accused were sent for comparison to the Govt. Examiner of Questioned Documents at Simla. He also wrote letter Ex.PW35/B to the Assistant Excise and Taxation Commissioner, whose reply is Ex.PW7/1. He also tried to locate Des Raj but he was not found being non-existent. B B Malhotra, PW35, who was working in Head Office, Oriental Bank of Commerce, New Delhi, proved about the posting of Jatinder Pal- accused as Manager of Oriental Bank of Commerce, Civil Lines Branch, Amritsar and Kirti Kumar Anand-accused as Accountant of the same Branch and that both of them were public servants. He also proved photo copies of the sanction order Ex.PW35/1 and Ex.PW35/2. Shadi Lal Malhotra, Retd. General Manager, Oriental Bank of Commerce, as PW36, proved signatures of accused-Jatinder Pal on his leave applications Ex.PW33/1 and Ex.PW33/10 and also on letter Ex.PW15/1. He further deposed about the procedure for loan of new vehicle by the Bank Manager in the Regional and Divisional Offices and proved letter Ex.PW36/2 vide which the action of the Branch Manager was confirmed subject to compliance of the conditions applicable to such type of advances. Vijay Kumar Malhan, PW37, who succeeded accused Jatinder Pal as Branch Manager, Oriental Bank of Commerce, Civil Lines Branch, Amritsar, proved signatures of accused Jatinder Pal on debit voucher Ex.PW15/7, Credit Transfer Vouchers Ex.PW9/4 and Ex.PW9/5, Credit voucher Ex.PW9/3. He further stated that vide Ex.PW9/3, payment of Rs.1,64,000/- was made on behalf of Des Raj borrower to M/s Telco Body CRA No.519-SB of 1998, CRA No.534-SB of 1998 and CRA No.535-SB of 1998 -16- Builders and Spare Parts, by crediting the same to his account in Laxmi Commercial Bank, Gopal Nagar, Amritsar. He also proved signatures of accused-Jatinder Pal on letter Ex.PW36/3 intimating the Regional Office that loan of Rs.1,50,000/- had been released to Des Raj. He had also written letter Ex.PW37/1 to the Regional Office that the guarantee deed of Gurwinder Singh was not on the loan file of the bank and also that the loan was raised against the truck in order to help M/s Guru Nanak Rice Mills and the borrower was simply their servant. He recommended civil suit against the borrower and the guarantor and identified the signatures of accused- Jatinder Pal Ex.PW15/11 to Ex.PW15/13. He has also detailed about the procedure to be followed in case of bank loan for the purchase of new vehicle. R N Sinha, Retd. DSP, CBI, PW38, had partly investigated the case and took specimen signatures of Des Raj as contained in Ex.PW38/1 to Ex.PW38/8. Seizure memo is Ex.PW2/1 in this regard.

6. After the prosecution concluded its evidence, statements of the accused under Section 313 Cr.P.C. were recorded. Accused Jatinder Pal, claimed himself to be innocent and pleaded false implication being Manager in the Bank in the year 1980. However, he denied to be a public servant because the Bank was not nationalized till 1980-81. Accused Kirti Kumar Anand answered all the questions to be incorrect as he had no knowledge. However, he admitted his signatures on the credit reports in his official capacity and in good faith being subordinate to accused Jatinder Pal, Chief Manager and that his specimen signatures were taken under pressure and expert opinion is bias. Accused Manjit Singh answered all the questions as incorrect and pleaded that he did not stand guarantee for accused Des Raj CRA No.519-SB of 1998, CRA No.534-SB of 1998 and CRA No.535-SB of 1998 -17- and the guarantee deed Ex.PW15/8 does not bear his signatures. Accused Bhupinder Singh denied all the questions put to him and pleaded innocence on account of having no connection with M/s Telco Body Builders and Spare Parts, Katra Sher Singh, Amritsar and denied withdrawal of any money on behalf of the firm from the bank account of Des Raj.

7. Accused Parbhash Chand Jain, while answering all the questions to be incorrect, claimed innocence on the ground of having no knowledge of the crime.

8. All the accused led evidence in defence and they examined Gopal Krishan Sharma, Document Expert, Amritsar as DW1, who proved his expert opinion contained in Ex.DW1/A to the effect that the disputed signatures were not matching with the specimen signatures of accused Bhupinder Singh and B B Malhora, Chief Manager (Vigilance), Oriental Bank of Commerce, New Delhi as DW2, who sent the sanction order for prosecution of accused Jatinder Pal and Kirti Kumar Anand to the CVO vide letter dated 19.12.87.

9. After hearing both the parties and going through the evidence, learned trial Court convicted the accused-appellants for commission of offences punishable under Section 120B IPC read with Section 420, 465, 471 of IPC and under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947 and awarded them sentence as detailed in para 2 of the judgment.

10. Aggrieved from the judgment of conviction and order of sentence, the accused-appellants have preferred these three appeals. The other two co-accused, namely, Manjit Singh and Parbhash Chand Jain were acquitted by the learned Trial Court. CRA No.519-SB of 1998, CRA No.534-SB of 1998 and CRA No.535-SB of 1998 -18-

11. Learned counsel for the appellants has submitted that Regional Office was taken into confidence and only after its approval, the loan in question was sanctioned. He has further argued that in the instant case, appellant-Jatinder Pal, is the whistle-blower and it is only when he pointed out the irregularity, the entire case came to light. Therefore, he has argued that no intention to commit fraud upon the Bank can be attributed to the appellant.

12. Learned counsel has further argued that no inquiry was initiated against the appellants, Jatinder Pal and Kirti Kumar Anand, by the Bank which shows that the Bank authorities never doubted the intention or role placed by them.

13. Learned counsel has next argued that the entire papers for sanction of loan were examined by the appellant. The loan, in the instant case, was sanctioned in favour of one Des Raj son of Bishan Mal, regarding whom, one Gurjit Singh, partner of M/s Guru Nanak Rice Mills, filed an affidavit that the said Des Raj was in his employment. The prosecution did not make any effort to trace out said Des Raj. All the documents pertaining to the loan were furnished by the appellant to the Bank. If the appellant had some intention to commit fraud upon the Bank, in that eventuality, he would not have furnished the same.

14. Learned counsel has further pointed out that the entire loan amount stands repaid with interest to the Bank in the year 1987. There is nothing on record to suggest that appellants, Jatinder Pal and Kirti Kumar Anand, received any benefit out of the transaction. The loan was sanctioned as per procedure laid down by the Bank and on verification of the documents required for the same. CRA No.519-SB of 1998, CRA No.534-SB of 1998 and CRA No.535-SB of 1998 -19-

15. Learned counsel has further argued that appellant, Kirti Kumar Anand, being an Accountant, merely followed the instructions of Jatinder Pal, being his subordinate. He has further submitted that in fact, appellant Bhupinder Singh, is the culprit who received the payment in the instant case.

16. Learned counsel has lastly argued that from the decree drawn by the Civil Court, the innocence of appellants, Jatinder Pal and Kirti Kumar Anand, is established.

17. I have heard learned counsel for the parties and perused the record.

18. The facts of the present case, as detailed above, lead this Court to adjudicate upon two main issues. Firstly, whether the act of sanctioning of loan by the appellants Jatinder Pal and Kirti Kumar Anand was, in fact, a fraud played upon the Bank by virtue of which they gained pecuniary advantage? Secondly, whether appellant-Bhupinder Singh is guilty of hatching a conspiracy to defraud the Bank for his own pecuniary benefit?

19. Insofar as appellants Jatinder Pal and Kirti Kumar Anand are concerned, a perusal of the transcript of the letters exchanged between them and the Regional Office of the Bank, it actually had the authority to sanction the loan in question, shows that the appellants, at every step, took the Regional Office into confidence, informed them and thereafter, sought their concurrence in sanctioning the loan. Perusal of the letters, Ex.PW15/1, PW36/3, PW36/2, PW36/1, brings out the fact that the Regional Office even gave its verbal approval and conveyed the same to the appellant-Jatinder Pal. CRA No.519-SB of 1998, CRA No.534-SB of 1998 and CRA No.535-SB of 1998 -20-

20. The problem arose when appellant-Jatinder Pal informed the Regional Office that since the loanee had already purchased the truck in question from its own resources, the sanctioned loan has been credited in the account of loanee instead of crediting the same to the account of the seller. What is interesting to note here is that when Regional Office was informed of this position then they asked the appellant vide letter dated

23.12.1980 that he is required to furnish an explanation for the irregular reimbursement of sanctioned loan, which was replied by the appellant on

15.1.1981 by furnishing an explanation. After this letter, apparently, no correspondence was exchanged between the appellant-Jatinder Pal and the Regional Office. Since no further correspondence was produced by the prosecution in its evidence before the trial Court, this prima facie gives rise to the presumption that even Regional Office was satisfied over the reply and its supporting documentation furnished by the appellant along with his reply.

21. What is material is that the Bank itself never initiated any inquiry against either of the appellants, Jatinder Pal and Kirti Kumar Anand nor did get, at any stage, lodged any criminal complaint in regard to the loan in question. This leads to the inference that the Bank authorities were satisfied with the conduct of appellant-Jatinder Pal and they never suspected or found playing of any fraud by him.

22. The attending circumstances also point towards the innocence of appellant-Jatinder Pal. Finally, the only evidence that loanee-Des Raj, was non-existent, is tendered by the Investigating Officer in his statement before the learned trial Court. There is no mention of the efforts put in by the investigating authorities for tracing out the said Des Raj. Secondly, Gurjit CRA No.519-SB of 1998, CRA No.534-SB of 1998 and CRA No.535-SB of 1998 -21- Singh, partner of M/s Guru Nanak Rice Mills, in his affidavit, Ex.DA, DB, DC and DD, affirmed that Des Raj son of Bishan Mal, was their employee who had taken the loan. He undertook to pay the loan since Des Raj had left for some unknown place. The said Gurjit Singh was never produced before the trial Court. In fact, non-production of Gurjit Singh has weakened the prosecution case but on the contrary, the trial Court drew a negative inference against the appellants.

23. The copies of registration certificate of the vehicle in question and its insurance cover taken were submitted by the appellant to the Regional Office. If the appellant, at all, was a party to the conspiracy to defraud the Bank, there was no necessity with him to create an evidence regarding the vehicle which would ultimately go against him.

24. The deciding factor, which points towards the innocence of appellants Jatinder Pal and Kirti Kumar Anand, is that the entire loan in question along with interest, stands repaid to the Bank by 1987. The trial Court has gone to great length to hold that wrongful loss caused to the Bank, even though the appellants, Jatinder Pal and Kirti Kumar Anand, did not obtain any benefit out of it yet, is sufficient to establish their guilt under Section 5(1)(d) of the Prevention of Corruption Act. However, when the wrongful loss itself has not been proved given in fact that entire loan amount with interest was recovered by the Bank, the guilt of the appellants cannot be held as proved.

25. It must also be noticed that Bank recovered the loan amount, in question, through a Civil Court decree, though ex parte. While presenting its plaint and adducing evidence on its behalf, the Bank submitted these very documents, however, the genuineness of these documents is disputed CRA No.519-SB of 1998, CRA No.534-SB of 1998 and CRA No.535-SB of 1998 -22- by the learned trial Court for want of their scrutiny by the Civil Court.

26. The Civil Court passed the decree after fully satisfying itself about the documentary evidence which establishes the innocence of the appellant-Jatinder Pal. The case of the appellant-Kirti Kumar Anand is also on the same footing as that of appellant-Jatinder Pal since he was merely an Accountant under Jatinder Pal and obeyed his instructions.

27. However, insofar as appellant Bhupinder Singh is concerned, his guilt is established beyond reasonable doubt inasmuch as it is conclusively proved that he was the ultimate beneficiary of the loan amount and he actually withdrew the said amount from the account of M/s Telco Body Builders and Spare Parts Ltd. It is proved that he got opened current account, withdrew the loan amount as a part of a larger sum and subsequently closed the said account. His signatures on the cheque i.e. Ex.PW20/1 by way of which he withdrew the amount and on the account- closing form were compared by the Deputy Government Examiner and found to be of the appellant-Bhupinder Singh. Moreover, he also stands identified by the cashier to whom he presented said cheque and from whom he received the amount of Rs.3,82,000/-. It has also been proved conclusively that in fact, M/s Telco Body Builders and Spare Parts never, in fact, existed. The evidence in this regard is in the form of a letter written by the Assistant Excise and Taxation Inspector i.e. Ex.PW7/1 to the DSP, CBI, Chandigarh that no firm by the name of M/s Telco Body Builders and Spare Parts, Katra Sher Singh, Amritsar, was registered under the Punjab General Sales Tax Act, during the year 1980-81.

28. Thus, the act of defrauding the Bank came to be completed when the appellant Bhupinder Singh withdrew loan amount from the account of a CRA No.519-SB of 1998, CRA No.534-SB of 1998 and CRA No.535-SB of 1998 -23- non-existent firm, which, admittedly, never supplied anybody the truck in question. More importantly, appellant Bhupinder Singh, projected himself to be a partner of M/s Telco Body Builders and Spare Parts and thereby induced the Bank to transfer the loan amount in his account. Even if the Bank has recovered the money, yet the act of Bhupinder Singh in projecting himself as a partner of some non-existent firm, is a complete act in itself for committing a criminal act of playing fraud.

29. In the circumstances, CRA Nos.519-SB and 534-SB of 1998 are allowed and the appellants, Jatinder Pal and Kirti Kumar Anand, who are stated to be on bail, are acquitted. Their bail bonds shall stand discharged. As far as CRA No.535-SB of 1998 is concerned, the same is dismissed and conviction and sentence qua appellant-Bhupinder Singh, as recorded by the trial Court, is upheld. He is stated to be on bail. His bail bond stands forfeited. He be taken into custody forthwith to suffer the remaining part of his sentence.

30. Ordered accordingly.

30.07.2010 atulsethi Whether referred to reporter : Yes/No ( JITENDRA CHAUHAN) JUDGE