COMMON JUDGMENT Aggrieved by the judgment of conviction rendered by the XI Additional Judge for CBI Cases, Chennai in C.C.No.72 of 2001 dated 01.07.2009, Cr.A.No.372 of 2009 is filed by V.R.Vinaitheerthan (A8); Crl.A.No.375 of 2009 is filed by P.Rajaraman(A7); and Crl.A.No.405 of 2009 is filed by Shri Dev Anand and Shri.Mufid Abdulla Suleiman(A4 and A5).
2. The case of the prosecution in brief is as follows:
On 23.11.2000, based on the complaint received from Sri.S.S.Madan, General Manager, Chief Vigilance Officer, Indian Overseas Bank, Central Office, Chennai, the Economic Offence Wing of CBI at Chennai registered a case in RC 5(E) 2000/CBI/EOW/Chennai.
3. The sum and substance of the complaint of Sri.S.S.Madan is that, Shri H.B.Waya and Smt.S.H.Waya from Dubai placed FCNR deposit for USD 272,000/- (equivalent to Rs.116.96 lacs) on 17th September, 1999 with Purasaiwalkam Branch. Dr.K.S.Chhabra and Smt.Shama Chhabra from Dubai placed 3 FCNR deposits for USD 441,449.50 (equivalent to Rs.189.82 lacs) on 29.09.1999 and on 21.12.1999 respectively. Another 2 FCNR deposits were placed with Purasaiwalkam branch by Shri. K.M.Desai and Smt.J.K.Desai from Dubai amounting to USD 261,938.94 (equivalent to Rs.112.63 lacs) on 25.10.1999 and 12.01.2000. These deposit amounts have been received through Foreign Inward remittance duly transmitted under SWIFT message. Receipts for these deposits were issued by the branch and they were handed over to Shri.K.Vijay, Managing Director of M/s Em Vee Comforts and Travels Ltd., an intermediary, for onward transmission to the respective deposit holders.
4. After the expiry of the date of maturity, the deposit holders sought for the maturity value. Then, it has come to light that the FCNR deposits were foreclosed even before the maturity date. Before foreclosure, loans have been availed by one Shri.Rakesh Patel claiming as Special Power of Attorney holder for the depositors. By using fake power of attorney document, Shri.Rakesh Patel has availed loan from FCNR Account No.16/99 and transferred a sum of Rs.86.00 lakhs into the current account No.4068 of M/s Em Vee Comforts and Travels Limited. The demand loan of Rs.86.00 lakhs against the said FCNR deposit was disbursed to Shri.Rakesh Patel on 07.10.1999. Subsequently 30.04.2000 the said FCNR deposit was foreclosed before maturity based on the letter dated 26.04.2000 written by the depositors. After adjusting the demand loan, the balance amount was credited into the current account of M/s Em Vee Comforts and Travels Limited.
5. When the depositors sought for the deposited money after maturity period, enquiry was conducted which revealed that the Special Power of Attorney alleged to have been executed by Shri Hirachand Bhagawanji Waya and Smt.Shanta Hirachand Waya dated 29.09.1999 to Rakesh Patel is a false document. The alleged letter for demand loan through the said power of attorney Rakesh Patel and letter for foreclosure were all not genuine documents.
6. Same modus had been adopted, in the case of the FCNR deposits No.17/99, 29/99 and 30/99 for USD 2,00,000.00, USD 75,122.60 and USD 1,66,326.90 respectively made by the depositors Dr.Kartar Singh Chhabra and Smt.Shama Chhabra. Based on the letter of the depositors dated 03.11.1999, a sum of Rs.63.00 lakhs was taken as loan from their fixed deposits. Based on the another letter of the said depositors dated 04.01.2000, the second loan of Rs.76.50 lakhs was granted to the Special Power of Attorney holder Rakesh Patel against these FCNR deposits. The deposits were foreclosed based on the depositors' letter dated 24.04.2000. The demand loan was adjusted and balance proceeds were credited to the account of Rakesh Patel bearing No.4068 in the name of M/s Em Vee Comforts and Travels Limited at 10 B, by Rakesh Patel.
7. In respect of FNCR deposits No.19/99 and 3/2000 made by Shri K.N.Desai and Smt.J.K.Desai, the demand loans of 40.00 lakhs and Rs.44.00 laks were released to the depositors on 13.12.1999 and 23.02.2000 respectively. Based on the letter dated 03.12.1999 alleged to have been given by the depositors, the proceeds were credited into the current account No.4086 in the name of M/s Indus Global Incorporation at 10 B, Purasaiwalkam Branch Thereafter on 03.05.2000, based on the letter dated 03.05.2000 written by the depositors, FCNR deposits were pre-maturely foreclosed by the branch and the balance proceeds were credited, after adjusting the loan into the current account No.4086 in the name of M/s Indus Global Incorporation.
8. In all these cases, the depositors have denied executing power of attorney in favour of Rakesh Patel or issuance of letter to Rakesh Patel to avail loan and deposit the loan amount into the account of M/s Em Vee Comforts and Travels Limited or M/s Indus Global Incorporation. They were not aware of any existence of a person by name Rajesh Patel.
9. M/s Em Vee Comforts and Travels Limited is run by Vijay and M/s Indus Global Incorporation is run by K.Sridhar, Managing Director. Based on the complaint of S.S.Madan, CBI carried on the investigation and laid charge sheet against the following persons:
A1 :M/s Em Vee Comforts and Travels Ltd. Rep.by A2 A2 :Shri.K.Vijay A3 :Shri.Sridhar A4 :Shri Dev Aand A5 :Shri.Mufid Abdullah Sulaiman A6 :Shri.M.Nagaraj A7 :Shri.P.Rajaraman A8 :Shri.V.R.Vinaitheerthan A9 :Shri.T.R.Narayan A10 :Shri.K.Murugan
10. The trial Court held A3 to A8 guilty under Section 120B r/w 419 IPC,420 IPC, 467 IPC, 468 IPC, 468 r/w 471 IPC and 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988 and sentenced them as follows:-
Rank of the accused Convicted under Section Sentenced imposed by the trial Court A3 to A8 Under Sections 120-B r/w 419, 420, 467, 468, 468 r/w 471 IPC and 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988 To undergo 4 years RI and to pay a fine of Rs.50,000/- in default to undergo 1 year RI for the offence under Sections 120-B r/w 419, 420, 467, 468, 468 r/w 471 and 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988.
A7 Under
Section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988(6 counts each) To undergo 4 years RI and to pay a fine of Rs.50,000/- in default to undergo 1 year RI for the offence under
Section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988(6 counts) each.
A8 Under
Section 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988 To undergo 4 years RI each and to pay a fine of Rs.1,00,000/- in default to undergo RI for 1 year under
Section 13(2) r/w 13(1)(d) of PC Act, 1988.
A3 Under Section 420IPC To undergo 5 years RI and to pay a fine of Rs.10,000/- in default to undergo 1 year RI for the offence under
Section 420 IPC A4 Under
Section 420 IPC To undergo 5 years RI and to pay a fine of Rs.5,00,000/- in default to undergo 1 year RI for the offence under
Section 420 IPC A6 Under Section 419 IPC, 467 IPC 468 IPC and 468 r/w 471 IPC each (1)To undergo 3 years RI and to pay a fine of Rs.1,00,000/- in default to undergo 6 months RI for the offence under
Sections 419 IPC.
(2)To undergo 5 years RI and to pay a fine of Rs.1,00,000/- in default to undergo 1 year RI for the offence under
Sections 467 IPC 468 IPC and 468 r/w 471 IPC each.
A3 Under
Sections 467 and
468 IPC To undergo 5 years RI and to pay a fine of Rs.10,000/- each in default to undergo 1 year RI for the offence under
Sections 467 and
468 IPC A4 and A5 Under
Sections 467 and
468 IPC,
468 r/w 471 IPC each To undergo 5 years RI and to pay a fine of Rs.2,00,000/- each in default to undergo 1 year RI for the offence under
Sections 467 and
468 IPC and
468 r/w 471 IPC each.
A3 Under
Sections 467 and
468 IPC,
468 r/w 471 IPC each To undergo 5 years RI and to pay a fine of Rs.10,000/- in default to undergo 1 year RI for the offence under
Sections 467 and
468 IPC and
468 r/w 471 IPC each.
A7 and A8 Under
Section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988 To undergo 4 years RI and to pay a fine of Rs.50,000/- each in default to undergo 1 year RI for the offence under
Section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988 A7 Under
Section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988(6 counts each) To undergo 4 years RI and to pay a fine of Rs.50,000/- in default to undergo 1 year RI for the offence under
Section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988 The substantive sentences was ordered to run concurrently. Narayanan (A-9) and K.Murugan (A-10) not found guilty under Section 120-B r/w 419 IPC, 420 IPC, 467 IPC, 468 IPC 468 r/w 471 and 13(2) r/w 13(1)(d) of PC Act, 1988, 467 IPC and 468 IPC. Therefore, A10 was acquitted under Section 248 (1) Cr.P.C. So far as A3 is concerned, the sentence imposed in this case was ordered to run concurrently along with the sentence imposed in C.C.No.190 of 2002 of CBI Court, Bangalore.
11. Aggrieved by the conviction of judgment, Crl.A.No.372 of 2009 is filed by V.R.Vinaitheerthan(A8); Crl.A.No.375 of 2009 is filed by P.Rajaraman(A7) and Crl.A.No.405 of 2009 is filed by 1.Shri Dev Anand and 2.Shri.Mufid Abdulla Suleiman(A4 and A5).
12. Contention raised by the appellants:
The learned counsel appearing for the appellants in Crl.A.No.405 of 2009 would submit that the trial Court judgment is contrary to law against the weight of evidence and all probabilities of the case. The trial Court failed to note that the oral and documentary evidence do not prove the essential ingredients of the offence for which charges were framed against the appellants. There is no iota of evidence against the appellants and the available evidence on behalf of the prosecution does not indicate anything incriminating against the appellants that they got the documents forged by someone or that he had knowledge that the documents were forged. The trial Court failed to appreciate the fact that there is a lack of evidence to infer any conspiracy between the appellants and others. The money alleged to have been drawn from the FCNR accounts was not by the appellants and they had nothing to do with M/s Em Vee Comforts and Travels Limited or M/s Indus Global Incorporation where the loan availed from FCNR accounts were credited. The special power of attorney in favour of Rakesh Patel executed by the account holders were not subjected to any scientific test to prove that the said power of attorney was a forged document.
13. The learned counsel appearing for the appellant/A7 (P.Rajaraman) in Crl.A.No.375 of 2009 would submit that, this appellant being the Senior Manager of the bank was one who brought to the notice of the higher authorities through Ex.P245 dated 04.10.2000 and Ex.P151 at the earliest point of time about the doubtful nature of FCNR fixed deposits and loan taken on them through the powers of attorney alleged to have been executed by NRI (Non Residential Indian) depositors. While the bank's investigator had concluded that as a Senior Manager of the Bank, this appellant had acted in good faith, the trial Court erred in not taking note of the evidence of PW-28. The power of attorney in favour of Rakesh Patel was executed at Dubai by the depositors within the knowledge of Kiran Sangani(PW-32). The disputed documents were not sent to forensic science laboratory to test its genuinety. The factum of forgery of power of attorney has not been proved in accordance with law. The special power of attorney documents, which are marked as Exs.P35, P72 and P73, were not subjected to forensic test. When there are overwhelming evidence to show that this appellant as a banker acted in good faith and with due diligence, there was no illegality committed by him. In spite of overwhelming evidence in favour of the appellant, the trial Court has erred in convicting the appellants.
14. While NRI depositors made him to believe that they have authorised one Rakesh Patel as their special power of attorney to deal with their deposits and after issuing letter of consent to grant demand loan, the depositors have totally denied the execution of special power of attorney and authorisation to Rakesh Patel to operate their account. Without recording their previous statement, during the course of trial they were called to depose through video conference from Dubai. These depositors were not enquired by the investigating officer before filing the final report.
15. Exs.D1 to D6 relied by this appellant will expose the lacuna in the final report. Exs.P-324 to P-462 were not marked through maker of the document or through the witness concerned with those documents. Marking of these documents, through the Investigating Officer itself will go to show that the prosecution had no witness to speak about these documents and there is no proof to hold, the appellant is guilty of the offence charged. The account of the bank is audited periodically and no error was pointed out during those audit. While so, based on the belated complaint, the prosecution has arrayed the appellants as an accused and without proof, he had been convicted by the trial Court.
16. The learned counsel appearing for the appellant V.R.Venaitheerthan in Crl.A.No.372 of 2009 would submit that the Court below failed to consider that there was no evidence to show conspiracy between him and the other accused. The Court below has erred by holding the appellant guilty, despite giving a finding in paragraph No.226 of its judgments that there is no iota of evidence to show that A7 and A8 have dishonestly and fraudulently used the forged and fabricated documents and acquitting them for the charges under Section 468 r/w 471 IPC. When the essential part of the prosecution case is disbelieved by the trial Court, then the trial Court ought not to have convicted this appellant for the ancillary charges. The loan against FCNR deposit was sanctioned by this appellant only after getting the approval of the Chief Manager(A7). He had no knowledge about any forgery document presented at the time of disbursement. This appellant has sanctioned loan on 06.01.2000, when A7 was on leave. The evidence of PW-31, who was examined at Dubai through vedio conference is unreliable, since only at his instance these depositors have invested their money in the Indian Overseas Bank, Purasaiwalkam Branch.
17. PW-31 alone had exclusive knowledge of all these deposits made by different persons and he through Rakesh Patel was operating the investment and transactions of these FCNR accounts. The evidence of the Chartered Accountant(PW-31) and the Investigating Officer (PW-34) does not corroborate with each other. From their evidence, it could be seen that the agreement was arrived at between the depositors and the borrowers in Mumbai in the office of Kiran, Chartered Accountant. Therefore, A8, who had neither direct access to the customer nor being the senior officer in the branch, cannot be held responsible for his action done in good faith.
18. Contention of the counsel for the respondent:
Per contra, the learned Special Public Prosecutor for CBI Cases would submit that the trial Court had framed charges against the accused person for conspiracy, impersonation, cheating, forgery, fabricating documents and using fabricated document as genuine for the purpose of cheating. A7 and A8 are public servants, being the officers of the Indian Overseas Bank. They had conspired with Shridhar of M/s Indus Global Incorporation and K.Vijay of M/s Em Vee Comfort and Travels Limited along with Nagarajan who impersonated himself as Rakesh Patel, the power agent of the FCNRI depositors. With the help of A9 and A10, they have prepared forged documents and used the same through A4 and A5 to siphon the money from the FCNR accounts by transferring the same into the account of M/s Em Vee Comforts and Travels Limited and in M/s Indus Global Incorporation.
19. A7 and A8 besides permitting grant of term loans based on forged special power of attorney, also permitted the fund to be deposited into the above said two accounts and the same were withdrawn immediately. After availing loan, based on the letter perpetrated to have been sent by the deposit holders, the FCNRI deposit accounts were foreclosed pre-maturely. These letters also proved to be fake and not really emanated from the depositors. After pre-mature foreclosure of the account, the balance proceeds were deposited into the account of M/s Em Vee Comfort and Travels Limited and M/s Indus Global Incorporation run by Vijai and Shridhar respectively.
20. As far as A7 and A8 are concerned, they being the officials of the bank had with a criminal intention accepted the forged special power of attorney without verifying its authenticity from the depositors and has allowed A2 and A3 to avail demand loan fraudulently. Contra to the banking norms, the amount which was credited into the account of M/s Em Vee Comfort and Travels Limited as well as M/s Indus Global Incorporation, were withdrawn through debit notes. A7 being the Senior Manager, after allowing the fraud to be committed and on completion of siphoning the money, when the depositors sought for the money on maturity, had informed the higher officials as if some foul play in the FCNR deposits and the loan he granted. This conduct by itself goes to show that A7 was aware of the forged documents right from inception. Pursuant to the conspiracy, he accepted those documents for siphoning the FCNR deposits and once the conspiracy of cheating by fraud got completed, to make believe as if he has acted in good faith, had reported the matter to the higher officials. Since the Court finding is based on the documents and solid proof, there is no ground to interfere with the finding of the trial Court.
21. Heard the learned counsel appearing for the respective parties. The trial Court, after examining witnesses and exhibits, had held that there is no sufficient evidence to prove the guilt of A9 and A10 beyond reasonable doubt and held A3 to A8 guilty.
22. A1 company was represented by A2 Vijay. On the death of Vijay A2, during the trial, the case against A1-Company and A2 individual got abated. Pending trial, A9 also died.
23. Out of the remaining convicted accused viz., A3 to A8, pending appeal, it has been reported before this Court that A6 died and his Criminal Appeal No. 400 of 2009 abated.
24. Point for consideration:-
Whether the trial Court has properly appreciated the evidence while holding the appellants guilty?
25. Three sets of NRI (Non-residential Indian) depositors from abroad had deposited their money in Indian Overseas Bank, Purasawalkam to the tune of Rs.4,19,00,000/- under FCNRI deposit scheme. As per the banking procedure, messages regarding foreign deposits known as SWIFT messages from Bombay were received for opening FCNR deposits. Accordingly, FCNR Nos.16/99, 17/99, 19/99, 29/99, 30/99 and 3/2000 were opened by Indian Overseas Bank, Purasaiwalkam branch. Later, the depositors have requested for a term loan. This request was emanated from the depositors through their power of attorney. The power of attorney document was notarised at Dubai. Based on the power document and the request letter, demand loans were permitted by the branch Chief Manager, Rajaraman(A7) and in his absence by A8 (Venaitheerthan). The demand loan amount were credited into the account of M/s Em Vee Comfort and Travels Ltd, opened by K.Vijay (A-2) or into the account of M/s Indus Global Incorporation opened by Sridhar (A-3). Later, letters from the depositors to foreclose their accounts and to credit the balance amount into M/s Em Vee Comforts and Travels Ltd., or M/s Indus Global Incorporation were received. At the direction of A7, the amounts were credited into A/c No.4068 of M/s Em Vee Comforts and Travels Limited or into the A/c No.4086 of M/s Indus Global Inc. Without knowing their accounts foreclose prematurely, after the date of maturity, the depositors had requested the Indian Overseas Bank to pay the maturity amount. Since the accounts were foreclosed pre-maturely, the Indian overseas Bank was not able to accede the request of the depositors. In the departmental enquiry, they realised that the power of attorney documents in favour of Rakesh Patel, the request letters by the depositors through Rakesh Patel to grant the demand loan and to foreclose the amounts, were all forged documents. Also, the investigation unravelled that A6 (deceased) Nagaraj had impersonated as Rakesh Patel. Dev Anand (A4) and Mufid Abdulla Suleiman(A5) got printed forged FCNRI receipts, letter heads of Indian Overseas Bank, Purasaiwalkam branch with the help of A9 and A10.
26. The facts spoken through prosecution witnesses:
A7 (P.Rajaraman) was the Manager of Indian Overseas bank, Purasawalkam branch, Chennai during the relevant point of time. A8 was the second Manager of the said branch. PW-2 Chitra Ebenezer was the Assistant Manager of the said branch. She was in-charge of deposit section. Her duty was to prepare debit FETS advise, debit voucher and credit voucher in respect of SWIFT messages and send the same to deposit section of the branch. Accordingly, she has sent the following report to the Central office:
(1)Ex.P10, dated 17.09.1999 for opening of FCNR(B) 16/98 dated 17.09.1999 to the central office.
(2)Ex.P11 dated 20.09.1999 for opening of FCNR (B) 17/1999 dated 20.09.1999 to the central office.
(3)Ex.P12 dated 25.10.1999 for opening of FCNR (B) 19/1999 dated 25.10.1999.
(4)Ex.P13 dated 21.12.1994 for opening of FCNR(B) 29/99 dated 21.12.1999 (5)Ex.P14 dated 21.12.1999 for opening FCNR (B) 30/1999 dated 21.12.1999.
(6)Ex.15 dated 12.01.2000 for opening FCNR (B) 3/2000 dated 12.01.2000.
The corresponding entries in FETS advice sent to the Central Office for FCNR (B) 16/99 is dated 17.09.1999. The FCNR (B) 16/99 dated 17.09.1999 issued in favour of Hirachand Bhavanji Waya and Smt.Shama Hirachand Bhavanji Waya for a period of 12 months is marked as Ex.P18. The original FCNR (B) 17/99 dated 20.09.1999 for USD 200000 in favour of Dr.K.S.Chabra and Shama Chabra for 12 months is marked as Ex.P21. The original FCNR B dated 20.12.1999 for USD 75122.60 issued in favour of Dr.Kartharsingh Chabra and Mrs.Shama Chabra for a period of 12 months is marked as Ex.P24. The FCNR 30/99 dated 21/12/99 for USD 1,66,326.90 issued in favour of Dr.Kartharsingh Chabra and Mrs.Shama Chabra for a period of 12 months is Ex.P25. The original FCNR 19/99 dated 25.10.1995 for USD 125000 issued in favour of K.K.Desai and Smt.Jhanavi Desai for the period of 12 months is marked as Ex.P28. The original FCNR B 3/2000 dated 12.01.2000 for Rs.1,36,938.94 USD issued in favour of K.K.Desai and Smt.Jhanavi Desai for a period of 12 months is Ex.P31.
27. These original FCNR receipts were prepared by PW-2 [Chitra Ebenezer] Assistant Manager and she has also signed in these receipts along with A7[P.Rajaraman], Senior Manager. As per the instruction of A7, PW-2[Chitra Ebenezer] has prepared FCNRI receipts and given it back to A7. According to PW-2, she used to send the original receipts to the depositors along with letter. Whereas, in this case, she has handed over the original FCNR to A7[Rajaraman] Senior Manager. She has deposed that she did not see the application submitted by the depositors and other documents like passport etc., before preparing FCNR receipts.
28. PW-3 [Sakunthalai], in her evidence, has spoken about the procedure for getting loan against the NRI deposits. The depositors, who require loan, should submit their application along with deposit receipt to the Loan Advance Officer. On receipt of such application, the signature in the application as well as in the deposit receipt has to be verified. If the signatures tally and found correct, the Deposit Officer has to record that the signature verified and found correct and affix his signature on the back of the deposit receipt. Thereafter, the Loan Advance Section will also verify the signature found in the deposit receipt and the signature in the loan application and the same will be placed before the Branch Manager for sanctioning the loan. If the Branch Manager recommends for sanctioning loan against NRI deposit, then credit and debit vouchers will be prepared simultaneously and sent to the Branch Manager for his signature.
29. According to PW.3, as far as this case is concerned, the loan application dated 07.10.1999 marked as Ex.P34 was submitted in the name of Rakesh Patel, special power of attorney of the deposit holder Shri.Hirachand Bhavanji Waya and Smt.Shama Hirachand Bhavanji Waya for Rs.86.00 lakhs against FCNR deposits of Shri.Hirachand Bhavanji Waya and Smt.Shama Hirachand Bhavanji Waya. A7[Rajaraman] handed over this application to PW-3[Sakunthalai] along with the original deposit receipts to process the same and to prepare the voucher for sanctioning the loan. In Ex.P34, below the signature of Rakesh Patel, A7 (Rajaraman) has made an endorsement as for Power of Attorney holder for Shir.Hirachand Bhavanji Waya and Smt.Shama Hirachand Bhawanji Waya. Such endorsement of A7(Rajaraman) is found in the 1st and 4th pages of Ex.P-34. The original special power of attorney dated 29.09.1999 marked as Ex.P35 executed by the deposit holder in favour of Rakesh Patel was sent to her for processing loan application. She prepared the debit voucher(Ex.P37) dated 07.10.1999 and credit voucher (Ex.P38) for Rs.86.00 lakhs on the instruction of A7(Rajaraman). Cheque dated 08.10.1999(Ex.P-39) for Rs.86.00 lakhs was issued by the power of attorney holder, Rakesh Patel favouring M/s Em Vee Comforts and Travels Limited. Accordingly, Rs.86.00 lakhs was debited in to the account of H.B.Waya and credited in the account of M/s Em Vee Comforts and Travels Limited. To prove the transfer of fund from the account of H.B.Waya to the account of M/s Em Vee Comforts and Travels Limited, the prosecution has relied upon Ex.P41 statement of account pertaining to NRO Account No.40990 and the statement of account No.4068 [Ex.P42] in the name of M/s Em Vee Comforts and Travels Limited.
30. From the evidence of PW-19 [N.R.Nagappan], Assistant Manager, Indian overseas Bank, Purasaiwalkam Branch, it is seen that the Indian Overseas Bank, Purasaiwalkam Branch, received a letter from Hirachand Bhawanji Waya of Dubai dated 29.09.1999, which is marked as Ex.P216. A perusal of this letter reveals that Mr.Hirachand Bhagwanji Waya depositors of FCNR deposit receipt for USD $ 272,000 has declared that there is no direct or indirect foreign exchange consideration for the Non-Resident Depositors(NRI), agreeing to pledge this deposit, to enable the resident individual to obtain loan facility. Another letter addressed to the Chief Manager, Indian Overseas Bank, Purasawalkkam branch from Mr.Hirachand Bhagwanji Waya and Mrs. Shantha Hirachand Waya dated 26.04.2000, which is marked as Ex.P-217 indicates that Mr.Hirachand Bhagwanji Waya and Mrs. Shantha Hirachand Waya have requested the branch to close the deposit immediately and adjust the loan account and credit the balance to the NRO account at their branch. The receipt No.16 of 1999 with maturity date 15.09.2000 and the loan A/c DL/83-89 are also referred in the letter. Based on the letter, which is marked as Ex.P-217, loan was adjusted on 02.05.2000 by pre-mature encashment of deposit receipt. However, when the depositor made a request, on expiry of the maturity date i.e. 15.09.2000 to pay back the money, it was realised by the Indian Overseas Bank that some foul play has been taken place. When the General Manager, Bank of Baroda made telephonic complaint regarding non-payment of FDR made in the name of Shri.Hirachand Bhawanji Waya, Mr.Narendra Prasad, Assistant General Manager, Indian Overseas Bank, has recommended for investigation. This letter of recommendation marked as Ex.P234 has prompted the Indian Overseas Bank to appoint A.Krishnamurthy, Chief Engineer, Indian Overseas Bank to conduct investigation regarding encashment of FCNR deposit. Accordingly, he has conducted investigation and submitted the report marked as Ex.P235. The said A.Krishnamurthy is examined as PW-28.
31. Dr.Karthar Singh Chhaabra and Mrs.S.Shama Chhabra are the yet another investors of Indian Overseas Bank, Purasaiwalkkam branch through FCNR deposits carrying (i) FCNR B 17/99 dated 20.09.1999 for USD 2,00,000 (ii)FCNR B 29/99 dated 21.12.1999 for USD 75,122.60 and (iii) FCNR B 30/99 dated 21.12.1999 for USD 1,66,326.90. The FCNR deposits are marked as Exs.P21, P24 and 25 respectively. The deposits were pre-maturely foreclosed at the instance of A7(Rajaraman) and the same is spoken by PW-3(Sakunthalai) in her evidence. Ex.P43 is the debit voucher in respect of pre-matured foreclosure of FCNR 30/99 USD 166326.90 (equivalent to the Indian Rs.71.52 lakhs). In Ex.P43, PW-3 and A7 have signed it.
32. Through the testimony of PW.3, we find that the vouchers were prepared by A7 and he kept in his chamber and asked her to sign in the vouchers. After pre-mature closure of the deposit, the Central Office was informed about FCNR scheme transaction vide Ex.P44. The FCNR (B)deposit receipt 29/99 marked as Ex.P24 for USD 75122.60 invested by Dr.Karthar Singh Chhabra and Mrs.S.Shama Chabra was prematurely foreclosed vide Ex.P49. This deposit is equivalent to Indian currency Rs.32,30,272/-. The debit voucher from the FCNR account of the deposit is marked as Ex.P49, which has been prepared by A7 and signed by him along with PW-3. The amount so pre-maturely foreclosed has been transferred on 03.05.2000 under debit voucher Ex.P50, but it has been signed by A7. The transaction has been reported to the Central office. Ex.P68 is the account opening form with the photocopy of Dr.Karthar Singh Chhabra and Mrs.Shama Chhabra for deposit of US $ 2,00,000. In this form, Dr.Karthar Singh Chhabra and Mrs.Shama Chhabra have affixed their signatures as applicants and had nominated one Anil Dua as a nominee. Two more blank account opening forms, which are marked as Ex.P69 and P70, where the signatures of Dr.Karthar Singh Chhabra and Mrs.Shama Chhabra are affixed were seized from the custody of A-7.
33. PW-4 [Ananthakrishnan],in his evidence, has spoken about the loan application made by Dr.Karthar Singh Chhabra and Mrs.Shama Chhabra through their power of attorney Rakesh Patel as against FCNR deposit of US $ 2,00,000. The application for sanctioning loan is marked as Ex.P59, wherein Rakesh Patel special power of attorney has signed for K.S.Chhabra and Mrs.Shama Chhabra. Based on the loan application, a sum of Rs.63.00 lakhs disbursed under debit voucher Ex.P60 and the same was credited into the NRO SB Account No.4068 of Dr.Kartharsingh Chhabra. The debit voucher is marked as Ex.P62 and the cheque was issued for transferring the said amount into the current account bearing No.4068 in the name of M/s Em Vee Comforts and Travels Limited. PW-4 [Ananthakrishnan] has further deposed about the loan application dated 06.01.2000 submitted by Dr.Kartharsingh Chhabra and Mrs.Shama Chhabra through their power of attorney Rakesh Patel for availing loan of Rs.76,50,000/- from their deposits FCNR 29/99 and 30/99.
34. This application has been received by A7 and processed by him. Later on 04.01.2000, A8, who was in charge of the bank, in the absence of A7, had disbursed the loan amount of Rs.76,50,000/- and signed the debit voucher(Ex.P66) from the account and credit voucher dated 06.01.2000 (Ex.P67). The power of attorney documents, which were relied on by A7 and A8 for disbursing the loan and foreclosure of the FCNR deposits issued by Dr.Kartharsingh Chhabra and Mrs.Shama Chhabra, are marked as Ex.P.35, Exs.P72 and P73.
35. In the Power of Attorney documents the executants are identified by Kiran Sagani of Sagani and Co. PW-32 Kiran Sagani is a Chartered Accountant by profession and a financial consultants at Dubai. This witness is resident of Dubai and he had been examined through vedio conference on 15.10.2008. He, in his chief examination had said that he informed the investors namely, Shir.Hirachand Bhavanji Waya and Smt.Shama Hirachand Bhawanji Waya, Dr.Kartharsingh Chhabra and Mrs.Shama Chhabra and K.K.Desai and Smt.Jhanavi Desai about the opportunity available with the Indian Overseas Bank, Purasaiwalkam Branch for investment. In his deposition, he has stated that he came to know about the investment at Indian Overseas Bank through one Sridhar. The special power of attorney dated 29.09.1999 alleged to have been executed by Shir.Hirachand Bhagwanji Waya and Smt.Shama Hirachand Bhagwanji Waya in favour of Rakesh Patel and attested by him are not genuine. He is not the legal attorney as found in the special power of attorney document. He disowned the signature found in Ex.P35 special power of attorney.
36. Mr. K.K.Desai and his wife Smt.Jhanavi Desai are depositors of FCNR 19/99 and 3/2000, which are marked as Ex.P-28 and Ex.P31. FCNR 19/99 is dated 25.10.1999 for USD 125000 with maturity value of 132417.59 USD. Ex.P31 is the deposit receipt for FCNR 3/2000 for 12.01.2000 for USD 136938.94. Both the deposits were in the name of K.K.Desai and Smt.Jhanavi Desai. The said K.K.Desai has been examined as PW-30.
37. According to PW-3, FCNR 19/99 was pre-maturely foreclosed on 03.05.2000. The debit advice for Rs.55,74,330/- was prepared by her and A7. The debit voucher Ex.P53 was dated 03.05.2000. The corresponding IBSA No.5460213, dated 3.5.2000, reporting FCNR(Banks) Scheme Transactions to the Central Office is marked as Ex.P54, which indicates a sum of Rs.55,02,667.00 has been debited from the account of the depositor. PW-30[Kiran Kumar Desai], in his evidence, has deposed that on advice of Kiran Sangani, he invested into the Indian Overseas Bank, Purasaiwalkam branch. He and his wife have invested 1,25,000 USD. The account opening form is identified by him as Ex.P303. He received a letter from the Indian Overseas Bank, dated 14.12.1999 enclosing FCNR deposit receipt No.0546005, dated 25.10.1999 for the value received from them on 22.10.1999. The said letter of Indian Overseas Bank signed by Chief Manager with the seal of Purasaiwalkam branch is marked as Ex.P304. The deposit receipt for 1,25,000 USD is marked as Ex.P305. On 16.12.1999 as advised, the Manager, Canara Bank, Overseas Bank, Tirupur to transfer the maturity amount of US $ 136,953.94 to Chase Manhattan Bank, New York, for credit of A/c No. 001-1-403458, Indian Oversea Bank, Central Office, Chennai and further credit to Indian Overseas Bank, Purasaiwalkam Branch, Chennai. He has also written a letter to the Manager, Indian Overseas Bank, Purasaiwalkam, Chennai, enclosing application form, two photographs and two passport copies for FCNR deposit of US $ 136,953.94, which has already instructed the Manager of Canara Bank, Tirupur to be transferred into his account. This letter Ex.P-307 of Dr.Kirathkumar M.Desai [PW-30] has been forwarded to the bank through Sangani & Co., Chartered Accountants, owned by Kiran Sangani [PW-32].
38. According to PW-30 (Kiran Kumar Desai], he received a letter from the Indian Overseas Bank, Purasawalkam Branch, Chennai, dated 28.01.2000 enclosing the deposit receipt No.0546369. The said letter is marked as Ex.P309. The deposit receipts, which were received by PW-30 alleged to have been forwarded by the Indian Overseas Bank are marked as Ex.P.304 and Ex.P.305. On comparing these receipts with Exs.P28 and P31 upon which the accounts were pre-maturely foreclosed, one could easily find that one set of the FCNR receipts are forged receipts. The evidence of PW-28 [A.Krishnamurthy], who had conducted departmental enquiry and submitted investigation report, marked as Ex.P151, would indicate that the deposit receipts, which were sent to the depositors and the rubber stamp found in the receipts, on careful examination, found to be fake receipts with the following questionable description:
1.The fake receipt is on a thin paper.
2.Date of deposit receipt was mentioned as 16.11.99 whereas the original bears the date as 16.9.99.
3.The typed letters in the fake receipt are smaller compared to the original.
4.The signatures of the Assistant Manager and Manager on the fake receipt are forgeries.
5.While in the original, the Assistant Manager had signed in blue ink, in the fake, the signature in red ink.
39. PW-29[Surya Prasad] Scientific Expert, who has examined the questionable document, has given his reports and reasons for his opinion, which are marked as Exs.P297 to P299. According to his opinion, the letter marked as Ex.P207 alleged to have been written by Kirat Kumar M.Desai and signed by him and his wife Mrs.Jahnavi K.Desai requesting for sanction of loan Rs.40,00,000/- and to credit the same into A/c No. 4086, is not the signatures of K.K.Desai and his wife Mrs.Desai. Also, he has opined that NRE account opening form in the name of Dr.K.S.Chhabra and Mrs.Shama Chhabra marked as Ex.P68 containing the signatures of Dr.K.S.Chhabra and Mrs.Shama Chhabra and the signatures found in the special power of attorney marked as Ex.P73 are that of one Sridhar. It is also opined that the signatures found as Rakesh Patel tallies with the sample signature of Sridhar. The signatures found as Smt.Hirachand Bhagwanji Waya and his wife Mrs.Shantha Hirachand Waya also tallies with the specimen signature of one Sridhar. The sign of Consulate General of India, the sign of Mukesh Patel, Attorney Services and the sign of Asoke Mukherji are made by Sridhar. The letter alleged to have been sent by Indian Overseas Bank, Purasaiwalkam branch to the foreign investors regarding enclosure of FCNR receipts are fake letter heads of 10 B and was not infact signed by Tmt.Chitra Ebenezer.
40. The evidence of the depositors PW-30 [Kiran Kumar Desai], PW-31 [Dr.Kartar Singh Chhabra] and PW-31 [Kiran Sanghani], Chartered Accountant, who was introduced these foreign investors, have had in unison deposed that the money deposited by them were never subjected to term loan and they never gave any power of attorney to the so called Rakesh Patel. They received the letters enclosing FCNR receipts and when on maturity they sought for foreclosure. They were shocked to know that the bank has prematurely foreclosed their accounts and credited the amount into third parties account without their advice. The letters alleged to have been written in their names and the signatures are denied as not their signatures. This is corroborated through the hand writing expert opinion that the power of attorney documents were not executed by these depositors as alleged by the bankers.
41. In the said circumstances as discussed above, through the evidence of prosecution, it is proved beyond doubt that the money invested by Smt.Hirachand Bhagwanji Waya and Mrs.Waya, Dr.Kartar Singh Chhabra and Smt.Shama Chhabra and Shri. K.M.Desai and Smt.J.K.Desai, through six FCNR receipts were in fact pre-maturely foreclosed and debited into the account of M/s Em Vee Comforts and Travels Limited and M/s Indus Global Inc. The statement of accounts of M/s Em Vee Comforts and Travels Limited for the current account No.4068 is Ex.P42. The Statement of accounts for the current account of M/s Indus Global Inc. No.4086 is marked as Ex.P78. The Statement of accounts for the current account in the name of M/s Indus Global Inc. at Indian Overseas Bank, Residency Road Branch, Bangalore A/c No.1989 are marked as Exs.P117 and P118.
42. The current account No.476/99 in the name of M/s Saryasachi Exports TNC at UCO Bank, Kengeri branch is marked as Ex.P136. The documents relating to these bank accounts would show that M/s Em Vee Comforts and Travels Limited at Bangalore had opened the account No.4068 at Indian Overseas Bank, Purasaiwalkam branch showing one Vijay has its Managing Director. M/s Indus Global Inc. has opened its account in Indian Overseas Bank, Purasaiwalkam branch as well as Indian Overseas Bank, Residency Road Branch, Bangalore showing Dev Anand and Sridhar as its Partners.
43. The certificate copy of the statement of account No.CA/01/002118 in the name of Veejay Dairy Products Ltd., Bangalore maintained at Corporation Bank, Bangalore-Cantonment Branch is marked as Ex.P180. The statement of account bearing A/c No. CA/01/002106 of M/s Em Vee Comforts and Travels Limited maintained at Corporation Bank, Bangalore, Cantonment Branch is marked as Ex.P183. The prosecution has shown statement of accounts of other beneficiaries of fund siphoned from NRI account which were later transferred to the various accounts. The prosecution has also shown that apart from M/s Indus Global Inc. and M/s Em Vee Comforts and Travels Limited, the other beneficiaries of the money transfer are the firms, which were floated by Vijay or Sridhar or Dev Anand by various names such as, Veejay Dairy Products and Amreen Plastic Private Ltd.
44. By applying the principles of reverse engineering, the analysis of the statement of accounts of M/s Em Vee Comforts and Travels Limited, its Managing Director K.Vijay(deceased), M/s Indus Global Inc., its Partners Sridhar and Dev Anand. What could be seen is that the foreign deposits have landed into their accounts. Monies were transferred either by cheque signed by Rakesh Patel or by pay-in-slip/credit voucher. It is proved that Rakesh Patel is a non-existing person, the 6th Accused Nagaraj had impersonated as Rajesh Patel. Through PW-22 [J.James Raj], who was Divisional Deductive Inspector at Vepery Division. He had deposed that one Nagaraj was serving under him as a Driver and later, he absent from the work. PW-22 [J.James Raj] has identified Nagaraj who was present in the Court and the photographs found in Ex.P77 which is the account opening form for NRI SB account No.41068 in the name of Dr.K.S.Chhabra by his power of attorney Rakesh Patel. The witness has also identified the photographs and passport copies found in the account opening form (Ex.P170) in respect of NRI A/c No.40990 in the name of Mr.Hirachand Bhawanji Waya and his wife Shanta Hirchand Waya.
45. Thus it is proved that the said Nagaraj representing himself as power of attorney of foreign depositors and impersonating himself as Rakesh Patel, had produced fake special power of attorney (Exs.P-72 and P-73), photographs, passport copies and forged letters in the name of depositors to grant loans and also to foreclose their accounts and credit the money into the accounts of M/s Em Vee Comforts and Travels Limited and M/s Indus Global Inc.
46. Apart from evidence of PW-2, PW-3 and PW-4, the other bank officials have clearly deposed that the entire transactions regarding the foreign investments under FCNR account, which is subject matter of the trial, were in exclusive knowledge by A7 and A8 and even in the FCNR receipts were not allowed by them to be despatched to the account holder in the normal course, but A7 has retained the document, which clearly indicates that as a Branch Manager [A7] has taken entire responsibility of granting loan and foreclosed the account. While doing so, he should have exercised reasonable care and diligence. Whereas, on seeing the documents, particularly, the power of attorney documents as well as the request letters for extending loan or foreclosure, does not on the face of it, indicate that these letters must have been emanated from the actual depositors. The possession of blank account opening forms with signatures of Chhabra recovered from A7 are marked as Exs.P68, 69 and 70. The letter, which is marked as Ex.P74, does not even contain the FCNR deposit receipt copy or the number. The alleged letter of K.S.Chhabra marked as Ex.P74 requesting the Branch Manager to open the account and pledge the receipt for loan of Rs.63.00 lakhs and authorising Rakesh Patel as a Special Power of Attorney, is totally in contravention of the banking Rules and it had not inspired the confidence of the trial Court that A1 has acted bona fidely. Equally to this Court. To sum up, the trial Court has rightly in its decision. A deeper conspiracy between the persons, who are arrayed as accused and few others, had hatched in secrecy and pursuance to the said conspiracy, innocent, gullible non-residential Indians residing at Dubai, had been allured to invest their fund in Indian Overseas Bank, Purasaiwalkam branch. Believing advise and direction of PW.32 the investors Shri H.B.Waya and Smt.S.H.Waya, Dr.K.S.Chhabra and Smt.Shama Chhabra and Shri.K.M.Desai and Smt.J.K.Desai have deposited their money under 6 FCNR deposit receipts. But all were foreclosed without their knowledge and instruction, by fabricating the documents. These investors have made to believe that their money have been credited and taken as deposit. The deposit receipts and the covering letter forwarded to them all are fake documents and the prosecution has proved through evidence that it has been manipulated at the instance of A4 and A5. Though the persons alleged to have printed the FCNR receipts, letter head and fake passport were not found guilty by the trial Court, it does not mean that the beneficiaries of the crime should also be let out freely. The role of A7 and A8 in the scheme of conspiracy is elaborately spoken by PW-3 and PW-4. A4 Dev Anand is one of the partner in M/s Indus Global Inc. Substantial amount from these NRI accounts had stepped into the account maintained in the name of M/s Indus Global Inc. A4 Deva Anand cannot plead ignorance by simply saying that, he was not an active partner in the Indian Gobal Inc and he was not an authorised signatory. Therefore, this Court confirms the judgment of the trial Court.
47. In the result, these Criminal Appeals are dismissed and the judgment of conviction passed in C.C.No.72 of 2001 on the file of the learned XI Additional Judge, (CBI Cases relating to Banks and Financial Institutions) at Singaravellar Maligai, Chennai 104 is hereby confirmed.
48. However, this Court, while confirming the conviction, is inclined to modify the sentence imposed by the trial Court, considering the age of the parties. Accordingly, the sentence imposed on the appellants (A4,A5,A7 and A8) is modified as under:
Rank of the accused Conviction under Section Sentence imposed by the trial Court Sentence modified by this Court A4, A5, A7 and A8 Under Section 120-B r/w 419, 420, 468, 468 r/w 471 IPC and 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988.
To undergo 4 years RI and to pay a fine of Rs.50,000/- in default to undergo 1 year RI for the offence under Sections 120-B, r/w 419, 420, 467, 468, 468 r/w 471 and 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988.
To undergo 3 years SI for the offence under Sections 120-B, r/w 419, 420, 467, 468, 468 r/w 471 and 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988.
No change in the fine amount imposed by the trial Court.
A7 Under
Section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988 (6 counts each).
To undergo 4 years RI and to pay a fine of Rs.50,000/- in default to undergo 1 year RI for the offence under
Section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988(6 counts) each.
To undergo 3 years SI for the offence under
Section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988(6 counts) each.
No change in the fine amount imposed by the trial Court.
A8 Under
Section 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988.
To undergo 4 years RI each and to pay a fine of Rs.1,00,000/- in default 1 one RI under
Section 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988.
To undergo 3 years SI each under
Section 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988.
No change in the fine amount imposed by the trial Court.
A4 Under
Section 420 IPC To undergo 5 years RI and to pay a fine of Rs.5,00,000/- in default to undergo 1 year RI for the offence under
Section 420 IPC To undergo 3 years SI for the offence under
Section 420 IPC.
No Change in the fine amount imposed by the trial Court.
A4 and A5 Under
Sections 467 and
468 IPC,
468 r/w 471 IPC each.
To undergo 5 years RI and to pay a fine of Rs.2,00,000/- each in default to undergo 1 year RI for the offence under
Sections 467 and
468 IPC and
468 r/w 471 IPC each.
To undergo 3 years SI for the offence under
Sections 467 and
468 IPC and
468 r/w 471 IPC each.
No change in the fine amount imposed by the trial Court A7 and A8 Under
Section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988.
To undergo 4 years RI and to pay a fine of Rs.50,000/- each in default to undergo 1 year RI for the offence under
Section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988.
To undergo 3 years SI each for the offence under
Section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988.
No change in the fine amount imposed by the trial Court.
A7 Under
Section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988 To undergo 4 years RI and to pay a fine of Rs.50,000/- in default to undergo 1 year RI for the offence under
Section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act,1988.
To undergo 3 years SI for the offence under
Section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act,1988.
No change in the fine amount imposed by the trial Court.
TThe substantive sentence is ordered to run concurrently. The period of sentence already undergone by the appellants is set off. The appellants/accused are directed to surrender before the Trial Court on or before 15.06.2018 failing which, the trial Court is directed to execute the warrant to secure the appellants to undergo the remaining period of sentence.
25.04.2018 Index:Yes/no Internet:Yes/no ari To
1.The XI Additional Judge, (CBI Cases relating to Banks and Financial Institutions) at Singaravellar Maligai, Chennai-104.
2.The Inspector of Police, SPE/CBI/ACB, Chennai.
3.The Inspector of Police, CBI/EOW/Chennai.
4.The Special Public Prosecutor for CBI Cases, High Court, Chennai.
Dr.G.Jayachandran,J.
ari Pre-delivery judgment made in Crl.A.Nos.372, 375 and 405 of 2009 25.04.2018