Full Judgment Text
1 SPSC.NO.3/2001-JUDGMENT
mnm
IN THE SPECIAL COURT (TRIAL OF OFFENCES RELATING TO
TRANSACTIONS IN SECURITIES) ACT, 1992
SPECIAL CASE NO. 3 OF 2001
C.B.I ...Complainant
Vs.
1. B. Raghubir Acharya
2. B.V. Srinivas
3. Hiten P. Dalal
4. Pallav Sheth
5. M.K. Ashok Kumar
6. Saranathan Mohan
7. N. Balasubramaniam ...Accused
Mr. Limosin, Sr. P.P for CBI
Mr. A.K. Moily, Advocate for Accused No.1, Accused No.1 present.
Mr. D.R. Pinge, Advocate for Accused No.2, Accused No.2 present.
Mr. Sunil Kale, Advocate for Accused No.3
Accused No.3, Hiten Dalal produced from Kolhapur Jail by A.S.I. Mr.A.B. Raskar,
Head Constable2/125 Mr. Y.B. Patil, Police Constable2418 Mr. V.B. Sorate and
Police Constable2423 Mr. N.M. Dongre.
Mr. Vivek Sharma for Accused No.4, Accused No.4 present.
Mr. Dinesh Purandare with Ms. Maya Sarkar for Accused No.5,
Accused No.5 present
Mr. D.P. Kamath Legal Aid Advocate for Accused No.6, Accused No.6 present.
Mr. Girish Kulkarni Advocates for Accused No.7, Accused No.7 present
CORAM : MRS. ROSHAN DALVI, J.
(SPECIAL COURT)
rd
Date of reserving the Judgment: 23 September, 2014
Date of pronouncing the Judgment: 6 th January, 2015
JUDGMENT :
1. Accused Nos. 1 and 2 (A1 & A2) are the General Manager and Fund
Manager of Canara Bank Mutual Fund Mumbai (CBMF Mumbai) which is a
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2 SPSC.NO.3/2001-JUDGMENT
wholly owned subsidiary company of Canara Bank, a nationalized bank.
Accused Nos. 5,6 and 7 (A5, A6 & A7) are the Executive Vice President and
Assistant Vice Presidents of one “Canbank Financial Services Ltd.,
Bangalore (Canfina, Bangalore), which is also a wholly owned subsidiary of
Canara Bank. Accused Nos. 3 and 4 (A3 & A4)are independent brokers.
2. The essential prosecution case is of conspiracy between the accused
to siphon off and misappropriate funds of CBMF, Mumbai and Canfina
under their dominion, commit criminal breach of trust, and fabricate
documents to camouflage their transaction by falsifying accounts,
preparing false documents, committing forgery and using as genuine such
forged documents by recording false transactions in the books of accounts
of CBMF and Canfina. Consequently these charges are under Section 120B,
r.w. Sections 409, 468, 471 and 477A of the IPC.
3. A1 has been charged not only with the above criminal conspiracy but
separately for criminal breach of trust in dishonestly entering into the
transaction for purchase of 2.1L shares for Rs.6.93 Crores against his
authority to transact up to 25 lakhs and dishonestly disposing off a part of
this property being 10000 out of 2.1 L shares purchased. A1 is also
charged with falsifying the accounts of CBMF, Mumbai showing an
ostensible callmoney transaction which CBMF, Mumbai which A1 had no
authority to enter into. A1 is also charged with dishonestly and
fraudulently receiving and misappropriating 10000 shares of Hindalco. A2
is charged with abetting A1 in preparing false documents more specially a
bank voucher, inter bank advice (IBA) and callmoney deal slip. A3 and A4
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3 SPSC.NO.3/2001-JUDGMENT
are charged with aiding and abetting A1 and A2 in misappropriating the
property of CBMF, Mumbai and aiding and abetting them in committing
criminal breach of trust of the property of CBMF, Mumbai and for receiving
stolen property from A1 and A2. Consequently these charges are under
Section 409 and 411 respectively of the IPC. A1 and A2 are charged with
preparing false documents which are false to their knowledge and using
them as genuine. A5, A6 and A7 are charged with preparing false
documents at their end in Canfina, Bangalore. Consequently these charges
are under Sections 468, 471 and 477A of the IPC.
4. A case against A1, A2, A5, A6 and A7, who are public servants, is
further of having received pecuniary advantage upon the aforesaid illegal
means and acts of themselves. Consequently these charges are under
Sections 13(1)(c ), 13(1)(d) r.w. Section 13(2) of the Prevention of
Corruption Act, 1988.
5. The prosecution case can be summarised thus:
(a) A1, and A2 under instructions of A1, the General Manager of
CBMF, Mumbai entered into a transaction of purchase of 2.1 L shares
of Hindustan Aliminium Company Limited (Hindalco) from a broker's
firm C. Meckertech Calcutta (CMac). They executed various
documents for the transaction. They showed the transaction
camouflaged as a call money transaction. A1 was authorized to enter
into a transaction for purchase and sale of shares and securities on
behalf of CBMF, Mumbai to the extent of Rs.25 lakhs. The transaction
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4 SPSC.NO.3/2001-JUDGMENT
that he entered into was of a far larger value.
(b) CBMF, Mumbai could have entered into callmoney transactions
only for borrowing money under the Reserve Bank of India (RBI)
guidelines. Consequently A1 and A2 do not have authority to enter
into the callmoney transactions also for lending purpose. The
transaction shown to have been entered into by them for callmoney
is for lending purpose. The transaction is of 6.93 Crores. The
amount is paid by cheque signed by A1. The documents in respect of
the transaction are executed by A1 and A2.
(c ) 2.1 L shares are delivered by CMac to the office of the counter
part of CBMF, Mumbai in Calcutta, CBMF, Calcutta. The office of
CBMF, Calcutta is a oneman show. Its venue is in the office of
Canbank Financial Services Limited, Calcutta (Canfina, Calcutta).
2.1L shares were received by CBMF, Calcutta under the oral
instructions of accused No.1. A1 initially directed the shares to be
retained by CBMF Calcutta. These shares were sent to A1 in Mumbai
in various installments as per the instructions of A1. These were in
installments of 10000 and 50000 shares out of 2.1L shares. The
remaining 1.5 L shares were again sold to CMac. The value of the
purchase and the sale is different resulting in a profit at the time of
sale. 60000 shares received by A1 would have to be accounted for.
10000 shares have not been accounted for. These are the shares
stated to have been missing. The prosecution has charged A1 with
having siphoned off and misappropriated such funds of CBMF,
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5 SPSC.NO.3/2001-JUDGMENT
Mumbai,. The prosecution has led evidence specifically of the
purchase, the delivery, the receipt and the loss of these 10000 shares
through various witnesses of these establishments essentially upon
documents. 50000 shares out of the aforesaid 60000 shares are
stated to have been verified and accounted for.
(d) The prosecution has claimed that 9100 of the 10000 missing
shares are traced to A3. A3 is a broker who is shown to have
brokered the transaction of further 19000 shares of Hindalco in two
installments of 9900 and 9100 shares. 9100 shares are stated to be
bearing the same distinctive and same certificate numbers of the
10000 shares out of 2.1 L shares sold and delivered by CMac to
CBMF, Mumbai and received by accused No.1 personally. 800 further
shares out of those 10000 shares are similarly stated to have been
traced to A4 through the transfer deeds of those shares. Further 100
shares are traced to one of the witnesses examined by the
prosecution, P.W. 25.
(e) The further case of the prosecution is of recording further false
transactions by accused Nos. 1 and 2 in conspiracy with accused
Nos.5, 6 and 7. These recordings show a purported purchase of 14%
NCD bonds by Canfina, Bangalore without mentioning the names of
the companies and a consequent sale of 9% bonds of SCICI bonds to
one M/s Rahul & Company which is the sister concern of CMac. This
transaction is shown to have been entered into for covering up the
purported callmoney transaction. The callmoney transaction is of
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6 SPSC.NO.3/2001-JUDGMENT
Rs.6.93 Crores plus interest amounting to 6.95 Crores The
transaction of purchase of 14% NCD Bonds is for Rs.7 Crores. The
sale of 9% SCICI bonds is for Rs.7.5 Crores. The sale transaction
bears the reference to “MFund”. The entry of sale bears a reference
to “Shares”. The prosecution has sought to link the actual
transaction of purchase and sale of shares purported to be a call
money transaction with the transaction falsely shown to be purchase
of 14% NCD bonds and sale of 9% SCICI bonds to make out a case of
criminal conspiracy between A1 and A2 and A5, A6 and A7.
6. The accused pleaded not guilty to the charge.
7. The prosecution has led oral evidence of 28 witnesses. The
prosecution has produced a plethora of documentary evidence. The
transactions actually entered into by A1 and A2 and the transactions
purportedly entered into by A1, A2, A5, A6 and A7 as also the
transactions purportedly shown to be separate and independent
transactions entered into by A1 with A3 are all shown and sought to be
proved by the prosecution essentially through documentary evidence. The
witnesses have produced the documents and led direct oral evidence to
prove the documents. Once proved, these documents are essentially to be
considered for seeing the bonafides or otherwise of the transactions. The
oral evidence, if any, would be excluded by such documentary evidence.
8. Hence the following points of determination arise and are answered
as follows:
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7 SPSC.NO.3/2001-JUDGMENT
Sr. No. Points Findings
1 Whether A1, A2, A3, A4, A5, A6 and A7
entered into a criminal conspiracy to
siphon off and misappropriate the funds
of CBMF, Mumbai and Canfina.
No Not proved
2 Whether A1 committed criminal breach
of trust by entering into the transaction
of purchase of 2.1 L shares of Hindalco
from CMac for Rs.6.93 Cr which he was
not authorised to transact and
dishonestly disposed off such property by
showing it to be an ostensible callmoney
transaction of Rs.6.93 Cr at 17.5%
interest.
Yes proved
3 Whether A1 received 10000 shares of
Hindalco from out of 2.1L shares from
CMac, which he dishonestly
misappropriated to his own use.
Yes proved
4 Whether A3 and A4 aided and abetted A1
in misappropriating 10000 shares of
Hindalco by showing the delivery of the
misappropriated shares bearing the same
distinctive numbers as from amongst the
2.1L shares sold by CMac to CBMF
Mumbai and thus aided and abetted A1
in committing criminal breach of trust
and received stolen property.
Yes – proved only
against A3.
5 Whether A1 and A2 committed forgery of
certain documents of CBMF, Mumbai in
order to cheat CBMF, Mumbai. No not proved
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8 SPSC.NO.3/2001-JUDGMENT
6 Whether A2 aided and abetted A1 in
committing the aforesaid offence by
preparing false documents such as the
vouchers, IBAs, callmoney deal slip and
such other documents for the aforesaid
transaction knowing them to be false.
No – not proved
7 Whether A5, A6 and A7 prepared false
documents to camouflage the transaction
of the purchase of shares as a transaction
for purchase of 14% NCD bonds from
CBMF, Mumbai and the later sale of 9%
SCICI bonds to Rahul & Co., the sister
concern of CMac.
No Not proved
8 Whether A1 and A2 obtained any
pecuniary advantage being the benefit of
10000 shares without any public interest.
Yes – proved only
against A1.
9 Whether A1 and A2 derived any
pecuniary advantage without any public
interest in purchasing 2.1L shares of
Hindalco and not accounting for 10,000
shares.
Yes – proved only
against A1.
10 Whether A5, A6 and A7 derived any
pecuniary advantage without any public
interest in recording fraudulent
transaction of purchase of 14% NCD
bonds and sale of 9% SCICI bonds.
No not proved
9. The aforesaid points of determination would require to be considered
essentially upon the documentary evidence which would naturally be used
for such financial transactions produced by witnesses who have led the
necessary direct oral evidence to prove the documents and to state the
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9 SPSC.NO.3/2001-JUDGMENT
circumstances in which the documents came to be executed. It is best
demonstrated by columnar statements.
10. The documents relied upon by the prosecution would conveniently be
seen in 4 parts; a group of documents showing the purchase of 2.1L shares
from CMac by CBMF, Mumbai, a group of documents showing the delivery
of 10000 and 50000 shares from CBMF, Calcutta to CBMF, Mumbai, a
separate group of documents to show the purchase of 19000 shares of
Hindalco from accused No.3 by CBMF, Mumbai and another group of
documents show the purported transaction of purchase of 14% NCD bonds
of sale of 9% SCICI bonds of Canfina, Bangalore.
11. It is material to see the link between these transactions and the role
of the accused therein.
12. 2.1 lakh shares are stated to have been purchased by A1 on behalf of
CBMF, Mumbai in one of their Mutual Fund Schemes called “Canbonus”
scheme from one CMac in Calcutta. The shares were received in the office
of CBMF, Calcutta from the office of CMac in Calcutta. What was the
transaction and how it was dealt with shall be considered thus:
13. Canbonus Scheme of CBMF.
mnm
IN THE SPECIAL COURT (TRIAL OF OFFENCES RELATING TO
TRANSACTIONS IN SECURITIES) ACT, 1992
SPECIAL CASE NO. 3 OF 2001
C.B.I ...Complainant
Vs.
1. B. Raghubir Acharya
2. B.V. Srinivas
3. Hiten P. Dalal
4. Pallav Sheth
5. M.K. Ashok Kumar
6. Saranathan Mohan
7. N. Balasubramaniam ...Accused
Mr. Limosin, Sr. P.P for CBI
Mr. A.K. Moily, Advocate for Accused No.1, Accused No.1 present.
Mr. D.R. Pinge, Advocate for Accused No.2, Accused No.2 present.
Mr. Sunil Kale, Advocate for Accused No.3
Accused No.3, Hiten Dalal produced from Kolhapur Jail by A.S.I. Mr.A.B. Raskar,
Head Constable2/125 Mr. Y.B. Patil, Police Constable2418 Mr. V.B. Sorate and
Police Constable2423 Mr. N.M. Dongre.
Mr. Vivek Sharma for Accused No.4, Accused No.4 present.
Mr. Dinesh Purandare with Ms. Maya Sarkar for Accused No.5,
Accused No.5 present
Mr. D.P. Kamath Legal Aid Advocate for Accused No.6, Accused No.6 present.
Mr. Girish Kulkarni Advocates for Accused No.7, Accused No.7 present
CORAM : MRS. ROSHAN DALVI, J.
(SPECIAL COURT)
rd
Date of reserving the Judgment: 23 September, 2014
Date of pronouncing the Judgment: 6 th January, 2015
JUDGMENT :
1. Accused Nos. 1 and 2 (A1 & A2) are the General Manager and Fund
Manager of Canara Bank Mutual Fund Mumbai (CBMF Mumbai) which is a
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2 SPSC.NO.3/2001-JUDGMENT
wholly owned subsidiary company of Canara Bank, a nationalized bank.
Accused Nos. 5,6 and 7 (A5, A6 & A7) are the Executive Vice President and
Assistant Vice Presidents of one “Canbank Financial Services Ltd.,
Bangalore (Canfina, Bangalore), which is also a wholly owned subsidiary of
Canara Bank. Accused Nos. 3 and 4 (A3 & A4)are independent brokers.
2. The essential prosecution case is of conspiracy between the accused
to siphon off and misappropriate funds of CBMF, Mumbai and Canfina
under their dominion, commit criminal breach of trust, and fabricate
documents to camouflage their transaction by falsifying accounts,
preparing false documents, committing forgery and using as genuine such
forged documents by recording false transactions in the books of accounts
of CBMF and Canfina. Consequently these charges are under Section 120B,
r.w. Sections 409, 468, 471 and 477A of the IPC.
3. A1 has been charged not only with the above criminal conspiracy but
separately for criminal breach of trust in dishonestly entering into the
transaction for purchase of 2.1L shares for Rs.6.93 Crores against his
authority to transact up to 25 lakhs and dishonestly disposing off a part of
this property being 10000 out of 2.1 L shares purchased. A1 is also
charged with falsifying the accounts of CBMF, Mumbai showing an
ostensible callmoney transaction which CBMF, Mumbai which A1 had no
authority to enter into. A1 is also charged with dishonestly and
fraudulently receiving and misappropriating 10000 shares of Hindalco. A2
is charged with abetting A1 in preparing false documents more specially a
bank voucher, inter bank advice (IBA) and callmoney deal slip. A3 and A4
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3 SPSC.NO.3/2001-JUDGMENT
are charged with aiding and abetting A1 and A2 in misappropriating the
property of CBMF, Mumbai and aiding and abetting them in committing
criminal breach of trust of the property of CBMF, Mumbai and for receiving
stolen property from A1 and A2. Consequently these charges are under
Section 409 and 411 respectively of the IPC. A1 and A2 are charged with
preparing false documents which are false to their knowledge and using
them as genuine. A5, A6 and A7 are charged with preparing false
documents at their end in Canfina, Bangalore. Consequently these charges
are under Sections 468, 471 and 477A of the IPC.
4. A case against A1, A2, A5, A6 and A7, who are public servants, is
further of having received pecuniary advantage upon the aforesaid illegal
means and acts of themselves. Consequently these charges are under
Sections 13(1)(c ), 13(1)(d) r.w. Section 13(2) of the Prevention of
Corruption Act, 1988.
5. The prosecution case can be summarised thus:
(a) A1, and A2 under instructions of A1, the General Manager of
CBMF, Mumbai entered into a transaction of purchase of 2.1 L shares
of Hindustan Aliminium Company Limited (Hindalco) from a broker's
firm C. Meckertech Calcutta (CMac). They executed various
documents for the transaction. They showed the transaction
camouflaged as a call money transaction. A1 was authorized to enter
into a transaction for purchase and sale of shares and securities on
behalf of CBMF, Mumbai to the extent of Rs.25 lakhs. The transaction
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4 SPSC.NO.3/2001-JUDGMENT
that he entered into was of a far larger value.
(b) CBMF, Mumbai could have entered into callmoney transactions
only for borrowing money under the Reserve Bank of India (RBI)
guidelines. Consequently A1 and A2 do not have authority to enter
into the callmoney transactions also for lending purpose. The
transaction shown to have been entered into by them for callmoney
is for lending purpose. The transaction is of 6.93 Crores. The
amount is paid by cheque signed by A1. The documents in respect of
the transaction are executed by A1 and A2.
(c ) 2.1 L shares are delivered by CMac to the office of the counter
part of CBMF, Mumbai in Calcutta, CBMF, Calcutta. The office of
CBMF, Calcutta is a oneman show. Its venue is in the office of
Canbank Financial Services Limited, Calcutta (Canfina, Calcutta).
2.1L shares were received by CBMF, Calcutta under the oral
instructions of accused No.1. A1 initially directed the shares to be
retained by CBMF Calcutta. These shares were sent to A1 in Mumbai
in various installments as per the instructions of A1. These were in
installments of 10000 and 50000 shares out of 2.1L shares. The
remaining 1.5 L shares were again sold to CMac. The value of the
purchase and the sale is different resulting in a profit at the time of
sale. 60000 shares received by A1 would have to be accounted for.
10000 shares have not been accounted for. These are the shares
stated to have been missing. The prosecution has charged A1 with
having siphoned off and misappropriated such funds of CBMF,
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5 SPSC.NO.3/2001-JUDGMENT
Mumbai,. The prosecution has led evidence specifically of the
purchase, the delivery, the receipt and the loss of these 10000 shares
through various witnesses of these establishments essentially upon
documents. 50000 shares out of the aforesaid 60000 shares are
stated to have been verified and accounted for.
(d) The prosecution has claimed that 9100 of the 10000 missing
shares are traced to A3. A3 is a broker who is shown to have
brokered the transaction of further 19000 shares of Hindalco in two
installments of 9900 and 9100 shares. 9100 shares are stated to be
bearing the same distinctive and same certificate numbers of the
10000 shares out of 2.1 L shares sold and delivered by CMac to
CBMF, Mumbai and received by accused No.1 personally. 800 further
shares out of those 10000 shares are similarly stated to have been
traced to A4 through the transfer deeds of those shares. Further 100
shares are traced to one of the witnesses examined by the
prosecution, P.W. 25.
(e) The further case of the prosecution is of recording further false
transactions by accused Nos. 1 and 2 in conspiracy with accused
Nos.5, 6 and 7. These recordings show a purported purchase of 14%
NCD bonds by Canfina, Bangalore without mentioning the names of
the companies and a consequent sale of 9% bonds of SCICI bonds to
one M/s Rahul & Company which is the sister concern of CMac. This
transaction is shown to have been entered into for covering up the
purported callmoney transaction. The callmoney transaction is of
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6 SPSC.NO.3/2001-JUDGMENT
Rs.6.93 Crores plus interest amounting to 6.95 Crores The
transaction of purchase of 14% NCD Bonds is for Rs.7 Crores. The
sale of 9% SCICI bonds is for Rs.7.5 Crores. The sale transaction
bears the reference to “MFund”. The entry of sale bears a reference
to “Shares”. The prosecution has sought to link the actual
transaction of purchase and sale of shares purported to be a call
money transaction with the transaction falsely shown to be purchase
of 14% NCD bonds and sale of 9% SCICI bonds to make out a case of
criminal conspiracy between A1 and A2 and A5, A6 and A7.
6. The accused pleaded not guilty to the charge.
7. The prosecution has led oral evidence of 28 witnesses. The
prosecution has produced a plethora of documentary evidence. The
transactions actually entered into by A1 and A2 and the transactions
purportedly entered into by A1, A2, A5, A6 and A7 as also the
transactions purportedly shown to be separate and independent
transactions entered into by A1 with A3 are all shown and sought to be
proved by the prosecution essentially through documentary evidence. The
witnesses have produced the documents and led direct oral evidence to
prove the documents. Once proved, these documents are essentially to be
considered for seeing the bonafides or otherwise of the transactions. The
oral evidence, if any, would be excluded by such documentary evidence.
8. Hence the following points of determination arise and are answered
as follows:
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7 SPSC.NO.3/2001-JUDGMENT
Sr. No. Points Findings
1 Whether A1, A2, A3, A4, A5, A6 and A7
entered into a criminal conspiracy to
siphon off and misappropriate the funds
of CBMF, Mumbai and Canfina.
No Not proved
2 Whether A1 committed criminal breach
of trust by entering into the transaction
of purchase of 2.1 L shares of Hindalco
from CMac for Rs.6.93 Cr which he was
not authorised to transact and
dishonestly disposed off such property by
showing it to be an ostensible callmoney
transaction of Rs.6.93 Cr at 17.5%
interest.
Yes proved
3 Whether A1 received 10000 shares of
Hindalco from out of 2.1L shares from
CMac, which he dishonestly
misappropriated to his own use.
Yes proved
4 Whether A3 and A4 aided and abetted A1
in misappropriating 10000 shares of
Hindalco by showing the delivery of the
misappropriated shares bearing the same
distinctive numbers as from amongst the
2.1L shares sold by CMac to CBMF
Mumbai and thus aided and abetted A1
in committing criminal breach of trust
and received stolen property.
Yes – proved only
against A3.
5 Whether A1 and A2 committed forgery of
certain documents of CBMF, Mumbai in
order to cheat CBMF, Mumbai. No not proved
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8 SPSC.NO.3/2001-JUDGMENT
6 Whether A2 aided and abetted A1 in
committing the aforesaid offence by
preparing false documents such as the
vouchers, IBAs, callmoney deal slip and
such other documents for the aforesaid
transaction knowing them to be false.
No – not proved
7 Whether A5, A6 and A7 prepared false
documents to camouflage the transaction
of the purchase of shares as a transaction
for purchase of 14% NCD bonds from
CBMF, Mumbai and the later sale of 9%
SCICI bonds to Rahul & Co., the sister
concern of CMac.
No Not proved
8 Whether A1 and A2 obtained any
pecuniary advantage being the benefit of
10000 shares without any public interest.
Yes – proved only
against A1.
9 Whether A1 and A2 derived any
pecuniary advantage without any public
interest in purchasing 2.1L shares of
Hindalco and not accounting for 10,000
shares.
Yes – proved only
against A1.
10 Whether A5, A6 and A7 derived any
pecuniary advantage without any public
interest in recording fraudulent
transaction of purchase of 14% NCD
bonds and sale of 9% SCICI bonds.
No not proved
9. The aforesaid points of determination would require to be considered
essentially upon the documentary evidence which would naturally be used
for such financial transactions produced by witnesses who have led the
necessary direct oral evidence to prove the documents and to state the
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9 SPSC.NO.3/2001-JUDGMENT
circumstances in which the documents came to be executed. It is best
demonstrated by columnar statements.
10. The documents relied upon by the prosecution would conveniently be
seen in 4 parts; a group of documents showing the purchase of 2.1L shares
from CMac by CBMF, Mumbai, a group of documents showing the delivery
of 10000 and 50000 shares from CBMF, Calcutta to CBMF, Mumbai, a
separate group of documents to show the purchase of 19000 shares of
Hindalco from accused No.3 by CBMF, Mumbai and another group of
documents show the purported transaction of purchase of 14% NCD bonds
of sale of 9% SCICI bonds of Canfina, Bangalore.
11. It is material to see the link between these transactions and the role
of the accused therein.
12. 2.1 lakh shares are stated to have been purchased by A1 on behalf of
CBMF, Mumbai in one of their Mutual Fund Schemes called “Canbonus”
scheme from one CMac in Calcutta. The shares were received in the office
of CBMF, Calcutta from the office of CMac in Calcutta. What was the
transaction and how it was dealt with shall be considered thus:
13. Canbonus Scheme of CBMF.
| Date | Exh.No. | Particulars | Remarks |
|---|---|---|---|
| 12/09/91 | 9 | Cheque issued by CBMF on<br>Canara Bank as 'Yourself' | Prepared by P.W.1,<br>Secretary Grade 1 in |
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10 SPSC.NO.3/2001-JUDGMENT
| for Rs.6.93 Crores towards<br>purchase of 2.1L shares. | Canbonus scheme of CBMF<br>on the instructions of A1<br>and signed by A1 (Ev. PW1<br>Para.1)<br>This was a normal cheque –<br>not RBI cheque – because it<br>was not and could not be a<br>call money transfer.<br>PW1 distinctly remembered<br>that A1 called him in his<br>chamber to prepare a<br>cheque towards purchase<br>of shares on 12/9/91 (To<br>Court: Ev.PW1 para.3).<br>The cheque was issued<br>'Yourself' because money<br>had to go from Mumbai to<br>Calcutta. CBMF, Calcutta<br>had no bank account.<br>Hence cheque was issued<br>to Canara Bank 'Yourself'<br>with instructions under<br>letter Exh.10. The cheque<br>was signed by A1 and one<br>BB Shah (Ev.PW2,<br>Divisional Manager, CBMF,<br>Para.9) | ||
|---|---|---|---|
| 12/09/91 | 10 | Letter giving instructions<br>for transfer of Rs.6.93<br>Crores to Canara Bank. | The letter is written by<br>PW1 on instructions of A1<br>(Ev. P.W. 1 Para.2).<br>The purpose is shown to be<br>towards purchase of shares |
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11 SPSC.NO.3/2001-JUDGMENT
| from Cmac. The beneficiary<br>is Canfina, Calcutta,<br>Overseas Branch.<br>This letter remained with<br>Canara Bank, Tamarind<br>Road Branch, Mumbai.<br>Therefore, it has not been<br>tampered with.<br>It shows the remittance of<br>purchase of shares; not a<br>call money transaction. | |||
|---|---|---|---|
| 12/09/91 | 11 | Deal slip – call money<br>No.1774 for Rs.6.93 Crores<br>showing investment in<br>Canfina @ 17.5% interest. | The date 19/9/91 is shown<br>to be interpolated and<br>corrected to claim that it<br>was 12/9/91.<br>It is signed by A1 & A2 and<br>it is in the handwriting of<br>A1. (Evi.PW1, Para.3 and<br>PW2 Para.6).<br>A2 was not present on<br>12/9/91 which is stated to<br>be holiday. |
| 12/09/91 | 12 | Voucher for investment of<br>Rs.6.93 Crores in call<br>money prepared by P.W.1<br>on 19/9/91 but shown to<br>be dated 12/9/91 checked<br>by A2 and initialed by A2<br>and P.W.1. | Voucher prepared as per<br>the instructions of A2 (Ev.<br>of PW1 Para.3).<br>The voucher shows erasers<br>and interpolation of the<br>words Canfina, (Calcutta).<br>It bears a reference to deal<br>slip No.1774. It shows |
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12 SPSC.NO.3/2001-JUDGMENT
| investment in call money<br>with Canfina, Calcutta @<br>17.5% interest.<br>It shows the bank as<br>“Tamarind Lane”. That is<br>the office of A1 and A2.<br>The word RBI is struck off.<br>A reference to RBI assumes<br>importance in call money<br>transactions which is struck<br>off.<br>It bears a whitening<br>erasure.<br>P.W.24, the handwriting<br>expert has deposed that the<br>words underneath the<br>erasure, seen by the<br>relevant forensic<br>equipments, showed<br>“Canfina Cal, Canara Bank.<br>(Ev. P.W.24 para 3). | |||
|---|---|---|---|
| 12/09/91 | 31 | Voucher made upon the<br>cheque Exh.9 and the<br>receipt of the letter of<br>instructions Exh.10. | This follows as the<br>corollary to Exh.9 & 10.<br>prepared and initialed by<br>PW3 clerk in Canara Bank,<br>Tamarind Road branch,<br>Mumbai<br>Prepared to give credit to<br>N.S. Road Branch, Calcutta. |
| 12/09/91 | 32 | IBA No.21551 of Canara<br>Bank for Rs.6.93 Crores. | Prepared and initialled by<br>P.W.3. |
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13 SPSC.NO.3/2001-JUDGMENT
| IBA is prepared upon the<br>voucher Exh.31 which is<br>prepared upon the cheque<br>Exh.9.<br>Hence the corresponding<br>IBA number is put on the<br>voucher. (Ev. P.W.3 para 5). | |||
|---|---|---|---|
| 12/09/91 | 84 | Credit Slip of Canara Bank,<br>NS Road branch, Calcutta<br>referring to Inter Bank<br>Advice (IBA) No.21551<br>Exh.32. | Prepared by Canara Bank,<br>NS Road Branch, Calcutta.<br>Produced by A6 in cross<br>examination by PW15. |
| 12/09/91 | 91 | Debit Slip of Canara Bank<br>for Rs.6.93 Crores towards<br>IBA No.21551 dated<br>12/9/91 on account of<br>purchase of shares. | This is analogous to<br>Exh.84, the Credit Slip. |
| 12/09/91 | 57 | Letter of Canbank financial<br>services Ltd. (Canfina),<br>Calcutta to Canara Bank<br>for transfer of Rs.6.93<br>crores and for crediting the<br>Current Account of CMac<br>in Canara Bank on account<br>of purchase of shares. | Written and signed by<br>PW8, clerk in Canfina,<br>Calcutta on telephonic<br>instructions of A1.<br>PW8 was the Junior most<br>clerk and took the<br>instructions on phone<br>because no one was<br>available to take the call<br>(Ev. PW8 Para.2). |
| 12/09/91 | 90 | Note of PW17 Chief<br>Manager of Canara Bank,<br>Calcutta. Taken down in<br>the handwriting of P.W.17 | PW 17 passed on the note<br>to the concerned officer Mr.<br>Ghosal who was incharge<br>of Current Account |
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14 SPSC.NO.3/2001-JUDGMENT
| upon the telephonic<br>conversation with A1 from<br>Canfina local office<br>(Calcutta) to credit CMac<br>with Rs.6.93 Crores for<br>purchase of shares as per<br>the instructions of<br>Mumbai. | department (Ev. P.W. 17<br>Para 2). | ||
|---|---|---|---|
| 12/09/91 | 93 | HO responding summary<br>showing Rs.6.93 Cr.<br>debited on 12/9/91 under<br>IBA No.21551. | The statement prepared at<br>the end of each day for the<br>credits and debits recorded<br>and reconciled. |
| 24 | List of equity transactions<br>of CBMF of Canbonus<br>Scheme of the period<br>September 91 to March,<br>92. | Signed by P.W. 2 | |
| 25 | List of Call Money<br>transactions of CBMF of<br>the period September 91<br>to March 92. | Certified by P.W. 2 | |
| 92 | Account of CMac in the<br>books of Canara Bank | The culmination of the<br>transaction for purchase of<br>shares from CMac. | |
| 12/09/91 | 92A | Credit Entry of CMac for<br>Rs.6.93 Cr. | The culmination of the<br>transaction for purchase of<br>shares from CMac. |
| 93 | Carbon copy of statement | Statement prepared at the |
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15 SPSC.NO.3/2001-JUDGMENT
| of Canara Bank showing<br>Head office responding<br>summary. | end of each day showing<br>credits and debits recorded<br>and reconciled. | ||
|---|---|---|---|
| 12/09/91 | 93A | Debit entry of CBMF<br>(Mumbai) of Rs.6.93 Cr. | Rs.6.93 debited to<br>Tamarind Road Branch<br>(CBMF Mumbai) under IBA<br>No.21551 (Ev. P.W.17 para<br>9). |
| 120 | Attendance signing register<br>of CBMF for Canbonus<br>Scheme in Canara Bank<br>showing debit entry of<br>Rs.6.93 Cr. | Showing transfer to N.S.<br>Road Calcutta branch<br>(CBMF, Calcutta, N.S. Road<br>Branch) showing the A2<br>was not present on<br>12/9/91 which is stated to<br>be a holiday. | |
| 12/09/91 | 23 | Bank statement of CBMF<br>for Canbonus Scheme in<br>Canara Bank showing<br>debit entry of Rs.6.93 Cr. | Showing transfer to N.S.<br>Calcutta (CBMF Calcutta,<br>N.S. Road Branch). |
| 14/9/91 | 15 | Letter signed by A2<br>enclosing IBA 21551 dated<br>12/9/91 for Rs.6.93 Crores<br>drawn on NS road,<br>Calcutta for payment to be<br>made to Canfina, Calcutta. | Showing transfer to N.S.<br>Calcutta (CBMF Calcutta,<br>N.S. Road Branch).<br>Prepared on 19/9/91 on<br>the basis of IBA No.21551,<br>Exh/32.<br>On the basis of this entry a<br>daily summary and<br>thereafter a consolidated<br>summary is prepared. |
| 19/9/91 | 13 | Deal slip – call money | Written by PW1 except the |
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16 SPSC.NO.3/2001-JUDGMENT
| No.1792. The deal slip is<br>for Rs.6.93 Crores with<br>interest @ 17.5% showing<br>interest amount of<br>Rs.232582.20 and the total<br>of 69532582.20. | slip No.<br>Prepared for recalling the<br>money invested on<br>19/9/91 on instructions of<br>A2 (Ev. of PW1, Para.4).<br>Initialed by A2 as the Fund<br>Manager and signed by A1<br>as the dealer.<br>Filled as per the chit<br>brought by A2 to PW1<br>(Exh.14A & 14B) | ||
|---|---|---|---|
| 14A<br>&<br>14B | Chit given by A2 to PW1 to<br>fill in the deal slip Exh.13. | Upper part of the chit is<br>written by A2 and lower<br>part by A1 (Evi.PW1<br>Para.5).<br>The upper part shows<br>Rs.6.93 Crores + interest<br>Rs.232582.20 making total<br>of 69532582.20 which are<br>the particulars entered by<br>PW1 in the deal slip Exh.13<br>except its number.<br>The lower part shows a<br>completely different IBA<br>No.31087 written by A1. It<br>also shows 'Rs.7 Crores'<br>(hitherto not mentioned) | |
| 19/9/91 | 16 | Voucher No.253 of CBMF<br>prepared by P.W. 1 upon<br>banker Tamarind Lane | Shows the breakup of the<br>said amount as an<br>investment in call money |
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17 SPSC.NO.3/2001-JUDGMENT
| Branch for Rs.<br>69532582.20. | Rs.6.93 Crores and interest<br>on call money<br>Rs.232582.20. It shows<br>amount recalled from<br>Canfina, Calcutta @ 17.5%.<br>The voucher is prepared by<br>PW1 initialed by PW1 on<br>instructions of A2 and<br>checked and initialed by A2<br>for recalling the call money<br>amount.<br>(Evi.PW1 Para.7).<br>It bears a whitening<br>erasure.<br>P.W. 24, the handwriting<br>expert has deposed that the<br>words underneath the<br>erasure, seen by the<br>relevant forensic<br>equipments, showed<br>“Canara Bank, Canfina Cal”<br>(Evi. P.W. 24 para 6). | ||
|---|---|---|---|
| 19/9/91 | 17 | Voucher No.254 of CBMF<br>showing account “banker<br>Tamarind Lane for the<br>amount of Rs.467417.80<br>received from Canfina,<br>Calcutta.<br>That is the office of A1 and<br>A2. | The lower portion of the<br>voucher shows Sundry<br>Creditors for the same<br>amount.<br>The remarks show that the<br>excess amount was<br>received from Canfina,<br>Calcutta. |
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18 SPSC.NO.3/2001-JUDGMENT
| This voucher was prepared<br>and initialed by PW1 and<br>checked by A2 and<br>initialed. It is prepared on<br>the basis of the chit<br>Exh.14A & 14B and<br>prepared on instructions of<br>A2 (Evi.PW1 Para.8) | |||
|---|---|---|---|
| 19/9/91 | 18 | Letter of CBMF, Mumbai to<br>Canara Bank showing<br>reference of IBA No.31087<br>dated 19/9/91 for Rs.7<br>Crores from Cunningam<br>Road, Bangalore being the<br>amount remitted by<br>Canfina. | The letter is in the<br>handwriting of PW1 and<br>signed by A2 enclosing the<br>IBA for Rs.7 Crores<br>prepared by PW1 on<br>instructions of A2.<br>(Evi.PW1 Para.9) |
| 19/9/91 | 107 | IBA No.31087 of Canara<br>Bank, Cunningam Road,<br>Bangalore on Tamarind<br>Road branch, Mumbai for<br>Rs.7 Crores . | The IBA is issued for credit<br>of CBMF remitted by<br>Canfina.<br>Canfina gives IBA Number<br>after the deal goes through.<br>PW21 received the original<br>IBA in the regular course of<br>his work from Canara Bank<br>which he sent to Mumbai.<br>(Evi.PW21 Para.7) |
| 25/9/91 | 19 | Letter of CBMF, Mumbai<br>enclosing IBA No.31087<br>dated 19/7/91 for Rs.7<br>Crores. | IBA is drawn by Canfina<br>Bangalore on Canara Bank,<br>Tamarind Lane branch for<br>the payment received from<br>Canfina, Calcutta. |
| 21/9/91 | 40 | Letter of CMac to Canfina, | PW6 the only staff of |
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19 SPSC.NO.3/2001-JUDGMENT
| Calcutta giving delivery of<br>2.1L shares of Hindalco<br>for Rs.6.93 Crores and<br>requesting<br>acknowledgment of the<br>shares. | CBMF, Calcutta received<br>this letter with annextures.<br>Initially PW6 refused to<br>accept the letter. He spoke<br>to A1. He was told to<br>accept it and asked to wait<br>for further instructions. He<br>accepted it (Evi.PW6<br>Para.4) and then made<br>entry of the receipt of<br>shares in the Stock register<br>Exh.43/43A.<br>The letter annexed a list of<br>the shares delivered Exh.41<br>(Colly.) and the bill of<br>CMac (Exh.42.) | ||
|---|---|---|---|
| 41 | List of 2.1 L shares<br>delivered by CMac. | Sent by CMac to PW6<br>along with letter Exh.40<br>and bill, Exh.42. (Evi.P.W.6.<br>Para 2)<br>Exhibit 41 shows the<br>various listings of shares<br>amongst the 2.1L shares<br>from pages 164 to 218.<br>Pg. 196 is the list of<br>10,000 shares. | |
| 9/9/91 /<br>11/9/91 | 42 | Bill of CMac for sale of<br>2.1L Hindalco shares as<br>per list attached for<br>Rs.6.93 Crores. | Usual broker's bill for<br>purchase of shares received<br>by P.W.6. |
| 09/09/91 | 78 | Contract note of CMac. | prepared and signed by the<br>Executive of CMac P.W.14<br>for 2.1L shares of Hindalco. |
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20 SPSC.NO.3/2001-JUDGMENT
| 11/09/91 | 79 | Delivery note of CMac for<br>the delivery of 2.1L shares<br>sent to CBMF along with<br>share certificates and the<br>bill of CMac. | Signed by one S.K.<br>Mukharjee identified by<br>P.W. 14. |
| 24/9/91 | 43 | Stock register showing<br>entries of all shares<br>received. | P.W. 6 made the necessary<br>entry in the stock register<br>upon receipt (after his<br>initial refusal). |
| 29/2/92 | 53 | Letter of P.W.7 to CBMF,<br>Mumbai asking for<br>instructions regarding 2.1L<br>shareswhether to be sent<br>to CBMF, Mumbai. | Prepared by P.W. 7 on<br>instructions of Calcutta<br>office of CMac as<br>instructions had not been<br>received from A1 until<br>then. |
| 26/3/92 | 80 | Contract Note of CMac<br>addressed to Citibank NA. | Prepared by P.W. 14 on<br>instructions of Calcutta<br>office of CMac. |
14. The reason for the admitted execution of the cheque Exh.9 by A1
would have to be seen. The aforesaid documents would show the initial
reason to be the purchase of 2.1L shares of Hindalco by CBMF of which A1
was the chief dealer being the General Manager of CBMF, Mumbai. The
instructions letter Exh.10 signed by A1 specifically shows that the demand
is made towards purchase of shares from CMac through the credit slip
Exh.31 and the letter of Canfina, Calcutta Exh57 . Similarly, the
instructions of A1 taken down by PW17 in his handwriting on the chit
Exhibit90 shows the purchase of shares from CMac. The letter of CMac
Exh.40 annexing the list of shares Exh.41 and its bill Exh.42 along with
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21 SPSC.NO.3/2001-JUDGMENT
the contract note Exh.78 and the letter of CMac Exh.79 unmistakably
show the transactions for purchase of shares by A1 in CBMF, Mumbai.
15. Exhibit22 the RBI Circular dated 9/10/1990 shows the limit of
participation in call money transactions. It shows only Banks permitted to
participate in CM Transactions as lender as well as borrower. CBMF was
permitted to participate in call money transactions only as lender. (Canfina
was not permitted by RBI either as lender or borrower). A1 has, for some
ulterior reason, which shall be seen presently, sought to show the
transaction as call money transaction which he had no authority to enter
into. CBMF has sought to lend money under the call money transaction to
Canfina, Calcutta on 17.5% interest. CBMF had no authority to lend
money to Canfina to that extent. Canfina Bangalore had no authority to
borrow money thus.
16. Nevertheless A1 and A2 as dealer and Fund Manager respectively
issued the deal slip as the dealer of CBMF, Mumbai upon Canfina bearing
No.1774 Exh.11 and the voucher No.237 showing investment made in
Canfina, Calcutta Exh.12 . The return of call money with interest is shown
th
under the deal slip 1792 dated 19 September, 1991 Exh.13 also signed by
A1 and A2 as dealer and Fund Manager respectively for Rs.69532582.20
which includes interest of Rs.232582.20 as per the slip / chit Exh.41 A and
41B made out by A1 and A2 in the respective handwritings identified by
their staff PW1. Similarly the voucher No.253 Exh.16 shows the break up
of the amount of call money and the return with interest. The voucher
No.254 Exh.17 shows the excess received from Canfina, Calcutta.
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22 SPSC.NO.3/2001-JUDGMENT
17. It is seen that thus far even the documents relating to call money
transactions do not show any transaction of Rs.7 Crores which first finds its
th
place in the letter dated 19 September, 1991 Exh.18 making a reference
to IBA No.31087 written by A1 in the lower portion of the chit Exh.14B for
th
the first time and the later letter dated 25 September, 1991 for Rs.7
Crores.
18. It may be mentioned that the transaction for the sale of shares would
be reflected in the equity transaction listing of CBMF, Mumbai. The equity
st th
transaction listing for the period of 1 September, 1991 to 30 September,
1991 Exh.24 produced by PW2, he having maintained it in the regular
course of his business in the computerised form for the Canbonus scheme,
does not show the transaction of purchase of 2.1L shares of Hindalco. A1
was the final decision maker in respect of equity transactions of CBMF,
Mumbai (Evi.PW2 Para 5). The listing of call money transaction of CBMF
st th
Mumbai for the period 1 September, 1991 to 30 September, 1991 shows
th th
entry No.37 against 12 September, 1991 and 19 September, 1991
th
showing Rs.6.93 Crores @ 17.5 % interest remitted to Canfina on 12
September, 1991 and returned by Canfina along with interest of
th
Rs.232582.20 on 19 September, 1991.
19. The statement of the current account of Canfina in Canara Bank A/c.
st th
No.26645 Exh.113 for the period from 1 September, 1991 to 30
th th
September, 1991 does not show any entry of 12 September, 1991. 12
September, 1991 is shown to be a holiday in the attendance signing
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23 SPSC.NO.3/2001-JUDGMENT
register, Exh.120 It shows the entry of Rs.7 Crores as a withdrawal under
cheque No.9050 and IBA No.13085 being Exh.113A . The entry under IBA
No.31085 does not show Rs.69532582.20 being the total sum received on
the call money transaction upon the principal amount of Rs.6.93 Crores
and interest of Rs.232582.20.
20. The stock register maintained by PW6 in normal course of his
business as Secretarial staff of CBMF, Calcutta, Exh.43 shows the entry of
th
24 September, 1991 for 2.1 L shares of Hindalco received by CMac and
sent to Bombay as per instructions over the telephone from Bombay given
by A1, the General Manager.
21. The account of CMac in the books of CBMF, Calcutta also shows the
th th
entries of 12 September, 1991 and 14 September, 1991 for purchase of
2.1 L Hindalco shares for Rs.6.93 Crores marked Exh.82B & 82C in the
register Exh.82 . Similarly the account of CMac maintained by Canara
Bank showing it to be a firm of share brokers, Exh.92 shows the entry of
th
12 September, 1991 for transaction of shares worth Rs.6.93 Crores,
Exh.92A kept in the normal course of the business of Canara Bank and
certified to be true.
22. The shares were received by P.W 6 in the office of CBMF, Calcutta
where he served as the secretarial staff. He was the only staff of CBMF
Calcutta because CBMF Calcutta did not have separate office and shared
the office with Can Bank Financial Services (Canfina) Calcutta.
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24 SPSC.NO.3/2001-JUDGMENT
23. P.W.6 received 2.1L shares including the hitherto missing 10,000
shares specified in the list of shares and the original share certificates
Exhibit41 from CMac as has been set out in the above columnar
statement. He did not know and had no instructions for the receipt. He has
deposed that hence he refused the receipt. Thereafter he contacted his
head office in Mumbai, CBMF, Mumbai. He spoke to A1 who was the
General Manger, in charge of purchase of shares and securities. A1 told him
to accept the receipt and await further instructions. P.W.6 has deposed that
th
he entered the shares received in the stock register Exhibit43 dated 24
September, 1991.
24. How these shares have been dealt with would be important to see.
This is reflected essentially in the evidence of P.W.6 who received
instructions from accused No.1 for sending/delivering groups of these 2.1
lakh shares. It is also reflected in the evidence of P.W.4 who dealt with
these transactions in Mumbai as the Secretary of the General
Administrative Department (GAD) of CBMF, Mumbai and the corroborative
evidence of P.W. 14 who was the executive of CMac and who ultimately
acted upon the transactions which ensued upon the instructions of the A1.
These transactions are best seen from another similar columnar statement
thus:
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25 SPSC.NO.3/2001-JUDGMENT
| Date | Exh.No. | Particulars | Remarks |
|---|---|---|---|
| 10/03/92 | 44 | Carbon copy of the letter<br>written by P.W 6 to CBMF<br>Mumbai enclosing 10000<br>shares of Hindalco. | The letter has been<br>written by P.W6 as per the<br>telephonic instructions of<br>A1. He received a<br>message from A1 to send<br>10000 shares out of<br>2.1lakh shares. P.W.6 sent<br>it under consignment note<br>of Rex courier. |
| 10/03/92 | 35 | Original and cc of<br>consignment notes of Rex<br>courier. | P.W.4, the inward and<br>outward dispatch Clerk,<br>received the original<br>consignment and has<br>produced it. P.W.6 has<br>identified the note. The<br>note was accepted at the<br>reception of CBMF<br>Mumbai by P.W.4. |
| 11/03/92 | 34 | Share Inward register<br>maintained by CBMF,<br>Mumbai. | Shows letters/parcels<br>received.<br>Produced by P.W. 4.<br>Various entries show<br>parcels sent to / received<br>by “custody” department. |
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26 SPSC.NO.3/2001-JUDGMENT
| 11/03/92 | 34A | Entry of 10000 shares of<br>Hindalco received by<br>CBMF, Mumbai from Rex<br>courier. | The entry has been made<br>by P.W.4. P.W.4 received<br>the packet sent by CBMF,<br>Calcutta through Rex<br>courier and forwarded it<br>to A1 as the addressee.<br>He would not know the<br>contents.<br>This packet is not shown<br>to have been sent to /<br>received by “custody”<br>department. |
|---|---|---|---|
| 10/03/92 | 45 | Courier register of CBMF,<br>Calcutta. | Maintained by P.W.6. The<br>entries are made by him.<br>All the entries in the<br>register are made for<br>transactions only through<br>Rex courier. |
| 10/03/92 | 45A | Entry made by P.W.6 in<br>his handwriting showing<br>letter dated 10/03/92<br>with the details of 10000<br>shares sent through Rex<br>courier. | The entry shows the<br>name of A1. |
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27 SPSC.NO.3/2001-JUDGMENT
| 23/03/92 | 46 | Carbon copy of letter<br>written by P.W.6 to CBMF,<br>Mumbai for delivery of<br>50000 shares of Hindalco<br>with the details enclosed. | These were sent by P.W. 6<br>upon the specific<br>instruction of A1 to be<br>sent by DHL or<br>Airfreight couriers.<br>P.W.6 sent the parcel<br>through Airfreight as<br>directed by A1 and not<br>through Rex courier<br>which was their usual<br>courier. Hence there is no<br>entry in the register<br>Exhibit45 which has<br>entries of transactions<br>sent only through the<br>regular courier of CBMF,<br>Calcutta.(Ev.: P.W. 6 para<br>12) |
|---|---|---|---|
| 24/03/92 | 47 | Receipt of Airfreight<br>courier for Rs.975/ upon<br>CBMF (Calcutta) | P.W.6 made the payment<br>to Airfreight to send the<br>parcel Exhibit46. The<br>amount having been paid<br>on 24/03/92, the parcel<br>was received on<br>25/03/92 in CBMF,<br>Mumbai.<br>The courier has<br>acknowledged the packet<br>(through A1 has not<br>acknowledged).<br>(Ev.: P.W. 6 para 18). |
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28 SPSC.NO.3/2001-JUDGMENT
| 25/03/92 | 34B | Entry in the inward<br>register of CBMF,<br>Mumbai showing the<br>packet containing the<br>letter dated 25/03/92<br>and the details of shares<br>enclosed received by<br>P.W.4 in CBMF, Mumbai. | P.W.4 received the packet<br>and forwarded it to<br>Custody Department.<br>(Ev.: P.W.4 para 4).<br>This was received through<br>Airfreight on the specific<br>instructions of A1 given to<br>P.W. 6 through Rex courier<br>was the normal courier.<br>(Ev. : P.W. 4 para 4<br>through). |
|---|---|---|---|
| 25/03/92 | 36 | Carbon copy of the<br>receipt of Airfreight<br>courier received by P.W.4<br>from CBMF, Cal. | The parcels under the<br>Courier receipts were<br>forwarded to the<br>addressee (P.W.4 para 7).<br>They were addressed to<br>A1. |
| 06/03/92 | 101 | Two contract notes of<br>CMac identified by its<br>proprietor P.W.19 for<br>50000 shares of Hindalco<br>brought for CBMF. | Admitted to be issued by<br>CMac and signed by<br>Santosh Mukherjee of<br>CMac. |
| 24/03/92 | 48 | Carbon copy of letter<br>dated 24/03/92 of P.W.6<br>sending 1 lakh shares of<br>Hindalco to CMac,<br>Calcutta and requesting<br>payment to Canfina,<br>Bangalore upon delivery<br>of the shares. | 1 lakh shares were<br>returned to CMac on the<br>instructions of A1.<br>(Evi.P.W.6 para 13) |
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29 SPSC.NO.3/2001-JUDGMENT
| 24/03/92 | 48A | Endorsement of receipt<br>of 1 lakh shares of<br>Hindalco by the<br>representative of CMac. | The endorsement was<br>made in the office of<br>CBMF Calcutta in the<br>presence of P.W.6 by the<br>representative of CMac.<br>(Ev.: P.W. 6 para 13). |
|---|---|---|---|
| 26/03/92 | 49 | Carbon copy of letter<br>addressed by P.W.6 to<br>CMac Calcutta returning<br>total 50000 shares and<br>requesting payment to<br>Canfina upon delivery of<br>the shares. | Letter sent under the<br>instructions of A1 to send<br>further 50000 shares to<br>CMac.<br>(Evi.P.W.6 para 14) |
| 26/03/92 | 49A | Endorsement showing<br>receipt of specified<br>50000 shares of Hindalco<br>by representative of<br>CMac showing the break<br>up of shares. | The representative signed<br>in the office of CBMF<br>Calcutta in the presence<br>of P.W.6.<br>(Ev.: P.W. 6 para 14). |
| 26/03/92 | 80 | Contract note of CMac<br>upon Citibank NA for<br>1.5L Hindalco shares @<br>Rs.600 per share<br>including brokerage of<br>CMac. | Produced by the executive<br>of the CMac P.W.14. |
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30 SPSC.NO.3/2001-JUDGMENT
| 26/03/92 | 86 | Deal slip No.508 of<br>Citibank NA prepared by<br>the dealer Citibank,<br>Mumbai for purchase of<br>shares initialled by the<br>dealer. | Deal slips are filed day<br>wise. This deal slip is<br>produced by P.W.16 who<br>served in Citibank as<br>Assistant Vice President in<br>1999 from the bank<br>records kept in the<br>normal course of the<br>business of the bank for<br>securities transactions<br>and given to the CBI.<br>The dealslip makes<br>reference to CMac as the<br>broker. It is for the<br>purchase of shares of the<br>net value of Rs.600/ per<br>share. It shows the total<br>proceeds of Rs. 9 crore for<br>1.5L shares. It shows the<br>shares purchased by<br>SCICI.<br>The cross examination in<br>respect of this document<br>has been declined by all<br>the accused. None has the<br>explanation for it. |
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31 SPSC.NO.3/2001-JUDGMENT
| 18/03/93<br>(after about<br>1 year) | 50 | Carbon copy of letter<br>written by P.W.6 to CMac<br>requesting confirmation<br>regarding payment<br>against delivery of 1.5L<br>shares of Hindalco to<br>Canfina, Bangalore. | This has reference to<br>letters dated 24/03/92<br>Exhibit48 and 26/03/92<br>Exhibit49.<br>Exhibit48 requests<br>payment specifically to be<br>made to Canfina<br>Bangalore. Exhibit49,<br>sent two days thereafter<br>does not specify to whom<br>to take payment.<br>Exhibit50 requires<br>confirmation for payment<br>upon Exh48 and Exh49.<br>The payment made to<br>Canfina is written in<br>another ink and is not the<br>carbon copy. |
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32 SPSC.NO.3/2001-JUDGMENT
| 19/03/93 | 51 | Letter of CMac to CBMF<br>referring to letter of<br>CBMF Calcutta dated<br>18/03/93 confirming<br>payment of 7.5 crores to<br>Canfina through<br>American Express Bank<br>Ltd. Calcutta on<br>28/03/92 for 1.5 lakhs<br>shares of Hindalco. | For the shares sent by<br>CBMF Calcutta to CMac<br>in March 92 the payment<br>is confirmed to have been<br>made in March, 93 to<br>Canfina.<br>Canfina (Bangalore) was<br>otherwise not concerned<br>with this transaction at<br>all.<br>Canfina (Calcutta) has<br>no role to play in this<br>transaction at all.<br>Confirmation to Canfina<br>would mean and imply<br>Canfina, Bangalore and<br>none other. |
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25. There has been a transaction of 19000 shares consisting of 9900 and
9100 shares through the broker A3 under the Canshare Scheme of CBMF.
This is an admitted transaction and stated by accused No.3 to be a separate
distinct transaction for sale of shares upon its market price made under his
two separate covering letters duly acknowledged by CBMF. This
transaction is evidenced by the following documents which may be also
seen best in a columnar statement.
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33 SPSC.NO.3/2001-JUDGMENT
26. Documents of transfer of 9900 shares:
| 27/11/91 | D2 | Preprinted letter of CBMF<br>produced by A3 without<br>annexure showing the list<br>of 9900 shares addressed<br>to the Company Secretary<br>of Hindalco Industries Ltd<br>enclosing 9900 shares with<br>their completed transfer<br>deeds for registering the<br>transfer. | The letter shows an<br>endorsement of<br>“Canshare”.<br>The letter is signed by<br>PW.27 and is the covering<br>letter showing the shares<br>sent for registration.<br>It is sent along with<br>outward delivery challan<br>Exhibit67 on 03/02/92<br>also signed by PW.27.<br>This constitutes the first<br>lot of 9900 shares and<br>shows part delivery prior<br>to advance payment<br>made.<br>3 blanks are filled in the<br>letter in a very different<br>ink.<br>The blanks filled in show<br>9900(shares) and 198<br>(transfer forms).<br>These blanks are in the<br>same ink as the<br>endorsement Exh.60A<br>on the contract note Exh.<br>60 (See below). |
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34 SPSC.NO.3/2001-JUDGMENT
| 28/11/91 | 60 | Contract note of A3 upon<br>CBMF for 19000 Hindalco<br>Company shares @<br>Rs.3.20 per share showing<br>advance paid Rs.60.80<br>lakhs on 2/12/91. | P.W.9 stamped the<br>contract note and entered<br>the details of the cheque<br>and the voucher showing<br>the amount paid by CBMF.<br>Note:<br>The first transaction of<br>purchase of 2.1L shares<br>was @ Rs.3.30 per share. |
|---|---|---|---|
| 60A | Endorsement made on<br>contract note Exhibit60<br>showing two separate<br>blocks of shares of 9900<br>delivered on 2/12/91 and<br>9100 delivered on<br>12/3/92. | This endorsement Could<br>have been made only<br>after 12/3/92.<br>This endorsement is made<br>in a different ink and is<br>made on a later date than<br>the date of the contract<br>note given the dates in the<br>endorsement.<br>The endorsement is seen<br>to be made by the same<br>pen in the same<br>handwriting as the blanks<br>of 9900 (shares) and 198<br>(transfer deals) in the pre<br>printed letter dated<br>27/11/91 ExhibitD2. |
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35 SPSC.NO.3/2001-JUDGMENT
| 02/12/91 | 59 | Voucher prepared by P.W.9<br>on instructions of A2 the<br>Fund Manager showing<br>advance outstanding | It shows cheque of<br>Rs.60.80 lakhs issued on<br>2/12/91. |
|---|---|---|---|
| amount of Rs.60.80 lakhs<br>for 19000 shares of<br>Hindalco under contract<br>note No.691. | |||
| 02/12/91 | 63 | Inward delivery challan<br>for 9900 shares of CBMF<br>counter signed by P.W.10<br>after delivery of shares<br>and verification of script<br>and number of shares. | The broker gets this<br>prepared by the Fund<br>Manager or his staff and<br>brings shares along with<br>the voucher to the<br>Custody Department.<br>The challan is prepared<br>based upon the delivery<br>endorsement (Evi: P.W.10<br>para 3). |
| 03/02/92 | 67 | Outward delivery challan<br>for 9900 shares of<br>Hindalco in “Canshare<br>Scheme signed by Papa<br>Rao. | It is prepared when shares<br>are sent out to the<br>company by the custody<br>department of CBMF (Evi:<br>P.W.11 Para 4). |
2. Documents of transfer of 9100 shares:
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36 SPSC.NO.3/2001-JUDGMENT
| 12/03/92 | 64 | Inward delivery challan for<br>9100 shares showing A3 as<br>the broker. | Verified and counter<br>signed by P.W.10 who<br>served as officer in the<br>custody department of<br>CBMF Mumbai.<br>It is prepared after the<br>shares duly registered<br>with the company come<br>back from the company<br>showing CBMF as the<br>owner of the shares (Evi:<br>P.W.10 para 6).<br>The broker gets this<br>challan prepared by the<br>Fund Manager or his staff.<br>Based upon the shares<br>inwarded the challan is<br>prepared (Evi: P.W.10 para<br>3).<br>Advance is stated to be<br>paid The advance paid<br>is for all 19000 shares<br>being 60.80 lakhs.<br>A3 has stated in his 313<br>statement that this challan<br>confirms the balance of<br>9100 shares in satisfaction<br>of contract No.881<br>making a total of 19000<br>shares.<br>These balance 9100<br>shares which constituted<br>the 2nd delivery was<br>inordinately delayed; it<br>was delivered as late as<br>12th March, 1992. |
|---|---|---|---|
| 28/11/91 | 60 | Contract note of A3 | It is for all 19000 shares. |
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37 SPSC.NO.3/2001-JUDGMENT
| 60A | Endorsement on the contract<br>note | It shows 2 separate blocks<br>of shares – 9900 shares<br>delivered on 2/12/91 and<br>9100 shares delivered on<br>12/3/92.<br>The endorsement is made<br>in a different ink.<br>It is made by the same<br>pen and in the same<br>handwriting as the<br>additions in the letter<br>produced by A3 – Exhibit<br>D2. | ||
|---|---|---|---|---|
| 12/03/92 | 61 | Letter of CBMF to custody<br>department showing the<br>particulars of 9100 shares<br>“accepted”signed by P.W.9 on<br>behalf of A2. | Prepared to inward the<br>shares when the shares<br>are received (Evi: P.W. 9<br>para 6).<br>9100 shares were to be<br>accepted and 9900 shares<br>were already delivered<br>showing the total quantity<br>of 19000 shares.<br>Advance is stated to be<br>paid. | |
| 26/03/92 | 68 | Preprinted letter of CBMF<br>Mumbai addressed to the<br>Company Secretary of<br>Hindalco Ltd. for registering<br>9100 shares in the name of<br>CBMF with a request to send<br>the shares to it. | An endorsement in blue<br>ink shows 606 –<br>7/4/1992. (which is the<br>date on which the<br>company effected the<br>transfer under 182<br>transfer deeds). Payment<br>is not shown being the<br>particulars of the delivery<br>challan Exhibit69.<br>The annexure to this letter<br>is Exh138, the list of<br>9100 shares. |
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38 SPSC.NO.3/2001-JUDGMENT
| 138 | List of 9100 shares prepared<br>by CBMF P.W. 27 custodian<br>division / registration<br>department of CBMF for<br>sending to the company<br>along with the covering letter<br>for registering the transfer. | The list is the enclosure to<br>Exhibit68, the covering<br>letter signed by P.W. 27.<br>9100 shares in this list<br>bear the same distinctive<br>and certificate numbers as<br>the 10000 shares on page<br>196 amongst the 2.1L<br>shares purchased by<br>CBMF from CMac and<br>sent by CMac under the<br>annexure Exhibit41 to<br>the letter Exhibit40.<br>Similar list annexed to the<br>letter ExhibitD2, but not<br>produced by A3 who got<br>ExhibitD2 produced, is<br>for the other set of 9900<br>shares.<br>The top portion shows the<br>denomination of share<br>transfer stamps required<br>for registering the<br>transfer.<br>9100 shares were in lots<br>of 50. Hence 182 share<br>transfer forms were filled<br>up and sent to the<br>company, Handlco as<br>shown in the entry.<br>(Evi. P.W. 27 para 6) |
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39 SPSC.NO.3/2001-JUDGMENT
| 07/04/92 | 69 | Outward Delivery challan<br>No.606 for 9100 Hindalco<br>shares. | It is verified and signed by<br>PW.27. It is prepared<br>when the shares are sent<br>out of the company for<br>registration<br>(Evi: P.W. 11 para 6). |
|---|---|---|---|
| 02/06/92 | 65 | Inward delivery challan for<br>9100 shares of Hindalco duly<br>registered showing Canara<br>Bank as a trustee (CBMF)<br>signed by P.W.10. | It is prepared after shares<br>registered with the<br>company came back to<br>the CBMF (Evi: P.W.10<br>para 6). |
| 07/04/92 | 70 | Acknowledgment receipt of<br>Hindalco for 9100 shares<br>received from CBMF. | Shows the 9100 shares<br>registered with Hindalco. |
27. Thus one purported transaction of 19000 shares is divided into 2
parts of 9900 shares and 9100 shares. Which are those shares would be
important to see. 9900 shares are clear; they are separate and distinct.
9100 shares are not clear – separate and distinct, but the same 10000
shares sold by CMac to CBMF, Mumbai received by P.W. 6 in CBMF Calcutta
and sent to A1 in CBMF Mumbai as shown above and as shall be clarified
below.
28. The aforesaid documents read together show that accused No.1 as
the General Manager of CBMF Mumbai contracted to purchase 2.1 lakh
shares of Hindalco at Rs.330/ per share aggregating to Rs.6.93 Crores
th
from CMac on 9 September, 1991. The consideration for the shares was
th
paid on 12 September, 1991 from Canbonus Scheme to CMac. CMac
th
delivered 2.1 lakh shares on 24 September, 1991 to CBMF Calcutta. CBMF
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40 SPSC.NO.3/2001-JUDGMENT
Calcutta forwarded 10000 shares initially out of 2.1 lakh shares to CBMF
th
Mumbai through Rex Courier on 10 March, 1992 and was received by
th
accused No.1 in Mumbai on 11 March, 1992. Though the outward
register of CBMF shows the delivery of shares, the evidence of P.W.6
specifically shows how the shares came to be delivered initially upon the
specific instructions of accused No.1. That evidence is corroborated by the
various documents showing delivery through Rex Courier. The lack of
inward entry of those shares despite the account of CBMF Mumbai having
been debited for its value, shows that CBMF Mumbai did not receive the
shares for which the value was paid and the shares remained at large. The
plethora of documentary evidence aforesaid shows that these were the very
shares which were delivered to accused No.1 and later shown to be
purchased from A3. The aforesaid documents show the transaction of
Canshare scheme and not Canbonus scheme. The two groups of
documents show the purchase of shares of CBMF for consideration paid by
CBMF, Mumbai to the broker A3, accepted and admitted by A3 and the sale
made by A3 upon receiving payment for 19000 shares shown in two lots of
9100 shares and 9900 shares. CBMF was entitled to purchase shares for
consideration and the shares are shown to have been sent for registration
and registered in the name of CBMF under unit “Canshare”. It is tried to
be shown by A3 in his 313 statement that CBMF is not shown to have
made a loss in these two transactions.
29. In fact 9100 shares are seen to be a part of 10000 shares already
purchased by CBMF, Mumbai from CMac and for which Rs.6.93 Crores was
already paid. Rs.60.90 Lakhs is stated to have been paid by CBMF,
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41 SPSC.NO.3/2001-JUDGMENT
Mumbai and admitted to have been received by A3. This would constitute
double payment for the same shares. This would not be anything but a loss
to CBMF, Mumbai engineered by its General manager, A1, as shall be
presently made clear.
30. It is interesting to see that 2.1L shares are shown in the list of shares
received and produced by P.W.6, Exhibit41 which runs from page 164 to
page 218 of the chargesheet. Page 196 amonst these pages shows 9100
shares. (These would soon be found missing and would be traced in a
unique but scientific manner by a chartered accountant as shall be shown
st
presently). The 1 10 entries in the list of 10000 shares on page 196 are
totalling to 9100 shares. These are precisely the same shares in the list of
9000 shares sent by P.W. 27 to the company Hindalco for affecting and
registering the transfer under 182 shares transfer forms of 50 shares each.
31. Hence shares initially purchased from CMac for consideration being
@ Rs.330 per share are tried to be shown to be purchased later from A3
are for consideration being @ Rs.320 per share. Double payment is
nothing but a loss to the CBMF, Mumbai. The payment is made by and
under the directions of none other than A1 as specifically deposed by all
the concerned witnesses. A1, being the General Manager and dealer,
would alone have the necessary authority to decide the purchase of shares
by CBMF, Mumbai.
32. Upon appreciating this position of A1 and the contact of A1 on behalf
of CBMF, Mumbai with A3 and CMac, it would be material to appreciate
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42 SPSC.NO.3/2001-JUDGMENT
the documents leading to the 2 separate transactions of 9900 + 9100
shares and not a single transaction of 19000 shares from the aforesaid
columnar statement.
th
(i) The first letter dated 27 November, 1991 for registering the
transfers is for the clear 9900 shares. The list of these 9900 shares
though annexed is not shown by A3 who got produced the document
ExhibitD2 .
(ii) The contract note is prepared for 19000 shares and not 9900
shares, on the very next day.
(iii) The voucher prepared 3 days thereafter in the office of CBMF,
Mumbai is for purchase of not 9900 shares, but 19000 shares.
(iv) The consideration paid and admitted to be received is for
19000 shares, not 9900 shares.
(v) The endorsements on the contract note show 2 deliveries in
December 91 and March 92.
(vi) The initial inward and outward delivery challans are also for
9900 shares and not 19000 shares.
(vii) Only after March, 92 similar documents for 9100 shares are
prepared.
(viii) The delivery of 9100 shares is thus inordinately delayed after
th
the initiation of the transaction on 28 November, 1991 by the
contract note, Exhibit60 .
(ix) The list of 9100 shares annexed to the letter sent to the
company for effecting transfer shows the same shares initially
purchased from CMac and being the bunch of 10000 shares (Pg.
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43 SPSC.NO.3/2001-JUDGMENT
196).
(x) Hence the dealing of 9900 shares is clear;
The dealing of 9100 shares is duplicated
The consideration is paid by CBMF, Mumbai twice –
to CMac & to A3.
33. The initial 2.1L shares were purchased from CMac @ Rs.330 per
share on 21/09/1991. 9100 shares were later shown to be purchased from
A3 @ Rs.320 per share on 12/03/1992.
34. Such is the loss to CBMF, Mumbai in the transaction for purchase of
shares engineered by A1 and in which A3 partook.
35. Now if the aforesaid columnar statement is seen and collated with
the earlier columnar statement showing the letters of P.W. 6 of the various
separate bundles of shares received from CMac and sent to A1 by P.W. 6 the
last piece of the puzzle falls into place.
(i) The first letter of P.W. 6 to CBMF, Mumbai is dated 10/3/1992.
P.W. 6 was to send only 10000 shares out of 2.1L shares
received by him from CMac.
(ii) The entries in the registers of CBMF Calcutta as well as Mumbai
are made on 11/3/1992.
(iii) The inward delivery challan for 9100 shares in the transaction
with A3 is made the very next day on 12/3/1992.
(This has taken place more than 3 months after the contract note,
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44 SPSC.NO.3/2001-JUDGMENT
Exhibit60 was executed and a day after these shares were received
by CBMF, Mumbai from CBMF, Calcutta.)
(iv) The letter of CBMF, Mumbai shows these 9100 shares
“accepted”.
(v) These together would form 19000 shares sought to be
registered in the name of CBMF, Mumbai in the books of the
Company Hindalco.
36. 10,000 shares were stated to be missing. These are 10,000 out of
2.1L shares initially sold by CMac to CBMF, Mumbai. PW 18 who is a CA
has made a report about how he found the missing shares. He has led
substantive direct oral evidence in that regard. He has deposed that in
1992 shares were held in physical custody. Some of the shares certificates
were lost. CBMF had purchased 2.1 L shares from CMac in Calcutta. 1.50L
shares were resold to CMac. (This sale is not disputed although the exact
date is not shown). 50,000 physical shares were available in CBMF. That
was personally verified by him / his firm. CBMF did not maintain any
record of the distinctive numbers or the certificate numbers of the shares.
Hence it was not possible to identify from their record which shares were
missing. PW18 asked CMac for details of the shares sold to CBMF. The
physical shares were in fact sent by CMac to CBMF, Calcutta under its letter
dated 21/9/91 Exhibit40 showing the distinctive and registration
numbers of 2.1L shares, Exhibit41 – page 196 of which is the list of 10000
shares. PW6 from CBMF, Calcutta had called for instructions from CBMF,
Mumbai. A1 had given specific instructions telephonically. A1 had asked
for 10,000 shares initially. They were sent through Rex Courier. Thereafter
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45 SPSC.NO.3/2001-JUDGMENT
CBMF Calcutta was asked to send 50,000 shares to A1. They were sent
through Airfreight Courier. Since CBMF could not provide the information
of the distinctive numbers and certificate numbers of those shares, PW18
enquired from CMac how CMac had acquired those shares which CMac had
sold to CBMF. CMac had purchased those shares from different brokers in
different lots. The brokers had sent shares under their respective covering
letters with details of the distinctive certificate numbers. PW18 got details
of 1,82,400 shares. The CBMF, Calcutta under the instructions of A1 from
CBMF Mumbai had sold back 1.5 L shares to CMac. Those shares never
came to Mumbai. They were in the CBMF, Calcutta office. PW18 matched
the other 50,000 shares which were sent in the second consignment
through Airfreight couriers by PW6 from CBMF, Calcutta to CBMF, Mumbai
and which was received in the office of the CBMF, Mumbai and handed
over to A1. PW18 matched those 50,000 shares and found that they were
out of 1,92,400 shares of which CMac had the distinctive and certificate
numbers having purchased them from one broker, who in turn purchased
them from various brokers. One broker had sold 37,000 shares. PW18
could trace 20,000 shares out of the 50,000 shares of CBMF. PW18 also
found that the other 10,000 shares which were missing were in two lots of
5050 and 4950. PW18 concluded that out of the 37,000 shares sold by one
broker to CMac 10,000 shares were missing.
37. PW 18 verified the registry of Hindalco. PW18 found out that out of
those 10,000 shares 9100 shares were sent for registration immediately
after they were supposed to have been received by CBMF, Mumbai but
were missing or not accounted for. Those shares were the shares
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46 SPSC.NO.3/2001-JUDGMENT
nd
admittedly sold by A3 to A1 on behalf of CBMF as the 2 installment of
sale endorsed in this contract note. The endorsement shows the sale the
next day after the shares were sent by P.W. 6 to A1; the shares being sent on
10/3/91 by P.W.6 received on 11/3/91 by A1 on behalf of CBMF, Mumbai
and sold on 12/3/91 by A3 ! PW18 saw the inward register of CBMF,
Mumbai which shows 10,000 shares received from CBMF, Calcutta
entered as received and also entered as handed over to the GM, CBMF,
Mumbai .
38. Those are the very shares sent by CBMF Mumbai under its pre
printed letter Exhibit68 to the Company Secretary of Hindalco to register
the transfer @ list of 9100 shares Exhibit138 .
39. P.W. 18 prepared a list of 10,000 shares that he thus found. He titled
that list in his handwriting. He identified his handwriting on the top of the
list. The list has been marked Exh98 .
40. PW 18 concluded that 10000 missing shares were amongst the shares
received by the Calcutta office of the CBMF from CMac, and handed over
to GM of CBMF, Mumbai. PW18 has deposed that subsequently those
shares were shown as the shares delivered by firm of A3. They were
forwarded by CBMF, Mumbai to the company for registration in the name
of CBMF. This is amplified in the aforesaid documentary evidence, Exhibit
41 and Exhibit138 .
41. It must be worth remembering the 2.1L shares were received from
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47 SPSC.NO.3/2001-JUDGMENT
CMac by CBMF, Calcutta. PW6 did not know about the transaction and did
not know what to do. He refused to accept the delivery initially. He took
the instructions from A1. A1 told PW6 to await instructions when PW6
enquired as to what to do with the parcel received. The ultimate
instructions were segregation of 10,000 shares from 2.1L shares. Indeed
the amount of 2.1L shares itself is rather peculiar. A mutual fund has
sought to purchase 2.1L shares. Out of those only 10,000 shares were
initially called for and went missing. Out of the remaining 2L, 1.5 L shares
were resold to CMac and 50,000 remained for CBMF, Mumbai which were
nd
received in the 2 installment by Airfreight Courier upon the specific
instructions of A1 not to send through Rex Courier though the inward
register would show entries only of Rex Courier who was their normal
courier.
42. The number of the purchase of shares as also specific instructions of
A1 as deposed by PW6 shows the peculiarity of the transaction. The
evidence of PW6 is clear and concise. He has supported his oral evidence
by all documentary evidence. The documentary evidence does show
segregation of 10,000 shares from the inception. 10000 shares were sent
th
by P.W. 6 from CBMF, Calcutta on 10 March, 1992 and received by accused
No.1 in CBMF, Mumbai being handed over to accused No.1 by the
th
forwarding Clerk on 11 March, 1992 and the transaction for 9100 shares
th
having taken place on the very next day being 12 March, 1992 for which
th
payment is made as per the initial document dated 28 November, 1991
from when the transaction with accused No.3 had commenced. If the
10000 shares are received from CMac amongst 2.1L shares which is crystal
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48 SPSC.NO.3/2001-JUDGMENT
clear from the evidence of P.W. 6 corroborated by the documentary
evidence of the list of shares received from CMac, Exhibit41 , they could
never have been sold by A3 to A1. The shares were received by A1 from
PW 6 but one day before they were shown to be inwarded as per the
inward delivery challan, Exhibit64 . Those were the shares that went
missing.
43. In the cross examination of the PW18 by A1 he has deposed how he
has seen the entry in the inward register of the shares having been handed
over to A1. That evidence is sufficient to see the act of A1. The evidence of
PW6 is clear about shares which came from CMac to CBMF sent through
Rex Courier to CBMF, Mumbai upon the specific telephonic instructions of
A1. The aforesaid documents, accepted by A3, show the 2 transactions for
effecting delivery of 19000 shares by A3.
44. In the cross examination of PW18 by A3 he has deposed about the
purchase of 19000 shares by CBMF, Mumbai from A3. However that was
nd
the later transaction of 2 December, 1991. That was in two installments
of 9900 and 9100 shares; the first transaction was of December, 91 and the
later transaction was of March, 92. They were sent for registration and
rd
registered in the name of CBMF. 9900 shares were registered on 3
February, 1992. In his further cross examination by A3 PW18 has deposed
that he has seen the transfer deeds of those 10000 shares including 9100
shares. He did not recollect whether he saw or did not see the stamp of the
A3 on the transfer deeds.
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49 SPSC.NO.3/2001-JUDGMENT
45. The prosecution has thus sought to link the 10,000 shares brought in
CBMF, Mumbai under the instructions of A1 with A3. 19,000 shares
purchased by CBMF, Mumbai in two lots of 9900 and 9100 under contract
Note No.881 and are evidenced by inward and outward delivery challans
Exh. Nos.63,64 & 65 and 67 & 69. 9900 shares are clear and different;
9100 shares which came into CBMF, Mumbai and forwarded to A1 are no
different from 10000 shares that A1 received from CMac through CBMF,
Calcutta as per his instructions and sent by Rex Courier.
46. The moot point to be decided as per the written argument on behalf
of A3 is whether 9100 shares delivered by A3 were from the lot of 10000
shares couriered by P.W.6 and received by A1. Accepting that the evidence
would have to be “scanned” in that behalf, A3 has contended that there is
no attempt of the prosecution to get the identity of the shares established –
which is belied by a look at Exhibits 41 and 138 itself. It does not matter
whether P.W.6 did not show which shares by their distinctive and certificate
numbers were sent. The reference to the letter dated 17/3/92 by A3 is
misconceived since the shares were received on 11/3/92 and purported to
be sold again by A3 to A1 on behalf of CBMF, Mumbai on 12/3/92.
47. Similarly the reliance upon the documents Exhibits 59, 60, 60A, D2,
63, 64, 65, 66 & 67 reflecting meticulous records of the transaction dated
28/11/91 for 9900 shares misses the total absence of such meticulousness
in the second transaction of 9100 shares. It is conspicuous by its absence.
The difference is apparent. Hence the endorsement Exhibit60A is seen to
be made after the second transaction on 12/3/92 in the contract note
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50 SPSC.NO.3/2001-JUDGMENT
dated 28/11/91 Exhibit60 .
48. The lament that P.W. 6, 7 and 9 have not deposed about the identity
of 9100 shares is also to no avail because the prosecution has produced the
entire list of 2.1 L shares purchased by A1 on behalf of CBMF, Mumbai sent
by CMac to PW 6, Exhibit41 and the separate list of 10000 shares out of
those same shares bearing the same distinctive and certificate numbers,
Exhibit138 the annexure to the letter of P.W.27, Exhibit68 to Hindalco
for registration of those 9100 shares ( Exhibit138 being page 196 of
Exhibit41 ). The contention that those were not the shares which can be
“attributed to” A3 is wholly without substance.
49. The arguments with regard to the transaction of 28/11/91 or the
later transactions by way of later transfers of these shares affected in the
records of Hindalco are wholly irrelevant to the charge of A3 receiving the
same shares purchased by A1 on behalf of CBMF, Mumbai and thereby
becoming a receiver of stolen property and purporting to sell (resell) them
to A1 on behalf of CBMF, Mumbai as its General Manager and dealer and
thus aiding and abetting A1 in misappropriating 9100 shares and thereby
committing criminal breach of trust. It is for A1 and A3 to explain the 2
lists as enjoined in the criminal jurisprudence with regard to the accused
having to explain the incriminating circumstances proved by the
prosecution (See State of Maharashtra Vs. Laxman Narsinhrao Ganti
2013 All MR (Cri.) 456 ). Neither has done so even remotely as shall be
seen presently.
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51 SPSC.NO.3/2001-JUDGMENT
50. 900 shares would remain if the prosecution case has to be accepted
in respect thereof also. It would have to be proved similarly by showing
the distinctive and certificate numbers of these 900 shares to be a part of
Exhibit41 . 800 shares out of those 900 shares are claimed by prosecution
to have been sold by A4 to CBMC, Mumbai. The remaining 100 shares are
stated to be sold by PW25, one Ketan Parekh to CBMF, Mumbai. Out of
800 shares sold by A4, 600 shares were transferred under deeds Exh.74.
A4 has accepted his stamp as broker on the reverse of some of the share
transfer forms showing transfer to Canfina Financial Services Ltd. though
he would not remember them out of lacs of shares that he stated his office
dealt with daily in his 313 statement.
51. 100 shares brokered by PW25 are accepted to be under the transfer
deeds in his name by CMac and signed by him in Exh.74.
52. The arithmetical calculation of 10,000 shares would be
9100+800+100 shares. The remaining 900 shares are also a part of
10000 shares out of 2.1L shares sold to CBMF, Mumbai by CMac under
st
Exhibit41 at page 196. The remaining entries after the 1 10 entries
show 900 shares in lots of 50 shares each. These are not shown to have
been paid for and got registered separately as 9100 shares sought to be
purchased from A3.
53. Accused No.1 must specifically account for the shares received by the
office of CBMF Mumbai where he held the position of General Manager
and dealer and which were handed over to him as the addressee, they
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52 SPSC.NO.3/2001-JUDGMENT
having been received upon his specific telephonic instructions. In reply to
question No.2 in the statement of accused No.1 recorded under Section
313 of the Cr.P.C. (313 statement) Accused No.1 has admitted having
signed Exhibits – 9 to 13 except Exhibit No.12 . This would show the
initial transaction which is the bedrock of the prosecution case. Accused
No.1 has accepted the payment made to CMac in reply to question No.20.
Accused No.1 has thrown his hands up to state that the parcel from CBMF
Calcutta sent through Rex Courier as also later parcel sent through
Airfreight Courier were not received by him and did not come to him. That
however is no answer to the specific case of P.W. 6 of having sent bundles of
shares from out of 2.1 lakh shares received from CMac as per specific
instructions of accused No.1 and the evidence of P.W. 1 and 2 that accused
No.1 alone could have given such instructions. Incidentally accused No.1
has accepted in reply to question No.58 that P.W.15 who served with CMac
to maintain accounts used to sometimes come to CBMF Mumbai where
accused No.1 was the General Manager.
54. A1 was again specifically shown Exhibits 40/41 and 68/138 and put
the prosecution case and the clear evidence of the purchase of 2.1L shares
specified in the list Exhibit41 , the annexure to Exhibit40 , sent by the
broker CMac with their distinctive and certificate numbers and the letter of
P.W. 27 sending 9100 shares for registration bearing the same numbers of
the 10,000 shares shown on page 196 of the list Exhibit41 in his letter,
Exhibit68 annexing a list of shares, Exhibit138 . His refrain was similar
and devoid of any explanation.
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53 SPSC.NO.3/2001-JUDGMENT
55. Accused No.1 has hence not explained the transaction of the
purchase of shares of Hindalco. He has not accounted for the 10000 shares
found missing and lost from 2.1 lakh shares received by CBMF Mumbai.
56. What is criminal breach of trust shall have to be first seen. It is
defined under Section 405 of the IPC the relevant part of which runs thus:
“405. Criminal breach of trust. – Whoever, being in any manner
entrusted with property, or with any dominion over property,
dishonestly misappropriates or converts to his own use that property, or
dishonestly uses or disposes of that property in violation of any
direction of law prescribing the mode in which such trust is to be
discharged, or of any legal contract, express or implied which he has
made touching the discharge of such trust, or wilfully suffers any other
person so to do, commits “criminal breach of trust”.”
The case of A1 is of admission of some of the documents shown by
the prosecution to have been executed by him, but of denial of his liability.
A1 has not explained how 10000 shares were missing from 2.1L shares
purchased by him on behalf of CBMF Mumbai as its General Manager
under the admitted cheque dated 12/9/1991 signed by him and how the
shares of the same distinctive and certificate numbers came to be
repurchased by him on behalf of CBMF Mumbai being 9100 shares from A3
on 12/3/1992, a day after he received 10000 shares from P.W.6 which have
been clearly shown and other 800+100 shares which have not been clearly
shown to have been purchased from A4 or P.W.25. It is argued on his
behalf that since A1 has denied receipt of 10000 shares by himself through
Rex Courier, it must be taken to have been received in the normal course by
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54 SPSC.NO.3/2001-JUDGMENT
the receiving clerk of CBMF, Mumbai of which A1 has no knowledge. In
view of the clear oral evidence of P.W.6 backed by the documentary
evidence contained in the letters, courier receipts and the registers
maintained by CBMF Mumbai and the further clear oral evidence of the
other witnesses of CBMF Mumbai all stating that they acted only on the
instructions of the A1, the argument cannot be countenanced. The act of
A1, in segregating the initial 10000 shares by specifically informing P.W.6 to
send only those shares from CBMF Calcutta to CBMF Mumbai and in later
purchasing 9100 shares out of 19000 shares from A3 containing the same
certificate and distinctive numbers as the 10000 shares set out in Exhibits
41 and 138 and for which he duplicated the payment by himself as
General Manager and dealer of CBMF Mumbai thus misappropriating the
said 10000 shares and the consideration paid therefor to his own use
having dominion over such property, must be taken to have committed
criminal breach of trust and further to have obtained pecuniary advantage
by misappropriating them to the said extent as a public servant.
57. It is argued on behalf of A1 that no incriminating documents are
produced by the prosecution against him. This is wonderous in view of the
pleathora of documentary evidence, several of them admitted by A1
himself and all proved by direct oral evidence of witnesses of CBMF,
Mumbai who worked under him. The argument that the prosecution failed
to establish the physical delivery of the alleged parcel would be set at
naught by the oral evidence of P.W.4 showing the entry 34A in the Shares
Inward Register Exhibit34 made by him showing the packet of 10000
shares handed over to A1 as the addressee of the parcel as per his specific
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55 SPSC.NO.3/2001-JUDGMENT
instructions to P.W.6 who sent the parcel addressed to A1 and not by
“custody” department of CBMF, Mumbai as was the usual practice.
58. Hence the further argument that the Board of Trustees and its
Chairman, to whom A1 reported, should have been arraigned is without
substance; A1 must alone be criminally responsible for his own acts; his
subordinates including A2 may not be. It does not matter that his seniors
have not deposed; these acts would be known to the staff members alone.
59. The argument that the Auditors of CBMF, Mumbai appointed by A1
himself have not reported the transaction is of no consequence because the
missing shares would, in fact, represent a fraud by suppressio veri which
was detected upon the scam having been brought to light when such
transactions were investigated by the CBI upon the Securities Exchange
Board of India (SEBI) having been constituted.
60. The argument that the prosecution has not obtained the sanction
under Section 197 Cr.PC to prosecute A1 as a public servant runs counter
to the argument that A1 had surpassed other officers. He is stated to have
been appointed from Scale I officer to Scale IV officer and posted to CBMF,
Mumbai as General Manager and which was not objected by RBI
contending that such promotion on merit could only be in a private
organisation. This would rule at the requirement of sanction under Section
197 of the Cr.P.C. In any event sanction under Section 197 of the Cr.P.C is
not required to be obtained for the offence of criminal breach of trust by a
public servant.
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56 SPSC.NO.3/2001-JUDGMENT
61. It is contended on behalf of A1 that sanction to prosecute A1 as a
public servant under Section 19 of the PCA is not shown to have been
obtained by the prosecution. Consequently cognizance of the said offences
made the PCA cannot be taken. That contention is clearly erroneous
because A1 had been dismissed from service well before the prosecution
was launched. The sanction to prosecute him was, therefore, not required.
62. Indeed upon the criminal breach of trust having been detected, A1
was dismissed from service. The argument that there was no case of
disproportionate assets against A1 is immaterial, this case having been
proved by the prosecution beyond reasonable doubt.
63. Accused No.2 is also seen to have acted in the transaction for the sale
of shares which was shown to be callmoney transaction which CBMF
Mumbai had no authority to transact in view of its value. Accused No.2
has accepted his signatures on the documents initialled or signed by him in
the transaction. However he was working under the instructions of
accused No.1. It is his statement that only accused No.1 would take care of
the call money transactions in the Corporate office. He has claimed that
th
on 12 September, 1991 when the transaction took place he was sent for
training and was accordingly absent in the office. He was given callmoney
th
deal slip on 13 September, 1991 when he resumed. He has explained in
his 313 statement how the transaction took place in his absence upon the
instructions of accused No.1 through his covering letter under the IBA from
Canara Bank where the beneficiary was shown to be Canfina Calcutta.
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57 SPSC.NO.3/2001-JUDGMENT
When he resumed, the Clerk in CBMF Mumbai told him to make a
remittance of Rs.6.93 Crores to Calcutta for which he signed the deal slip
and accordingly passed the callmoney entry. He has stated that he
followed up to get the callmoney with interest returned to Canbonus
th
Fund. He has stated that on 19 January, 1991 accused No.1 wrote the
IBA number on his slip showing the calculation of entries and asked him to
take that amount as credit and close the account. Accused No.1 signed the
callmoney deal slip and accordingly the books of CBMF Mumbai were
closed. Accused No.2 has explained that he thus closed the account as per
the instructions of accused No.1. Accused No.2 has stated that he has no
investment decision making power and that he looks after only accounting
work.
64. The position and designation of the two accused, accused Nos. 1 and
2, do show that only accused No.1 would have the decision making power
and the evidence, both oral and documentary produced by the prosecution
amply shows the decision making powers vested as also enforced only by
accused No.1. Accused No.2 could only have acted upon the instructions of
accused No.1.
65. A3 has answered in his 313 statement that he had sold 19,000 shares
of Hindalco to CBMF and delivered the shares against payment. He had
delivered 9900 shares under his covering letter acknowledged by CBMF. He
has claimed that that record was seized by the CBI in 1991. He has
claimed that the inward delivery challan Exh.63 confirms delivery of 9900
shares under contract No.881. He has further stated that inward delivery
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58 SPSC.NO.3/2001-JUDGMENT
challan of CBMF Exh.64 confirms the delivery of 9100 shares under
contract No.881 making a total of 19,000 shares. The delivery was under
his covering letter acknowledged by CBMF. A3 has stated that the shares
were received by the officers (witnesses) of CBMF, Mumbai “from my
office”. Such evidence is not shown to Court by Advocate on his behalf
despite that case of A3. A3 has specified in his 313 statement that his
entire delivery had gone in two parts along with two covering letters .
The covering letters of A3 duly acknowledged by CBMF, Mumbai which
would be only in his possession and which are not shown to be recovered
by CBI or given to CBI by A3 are not produced. A3 has further stated that
this transaction of delivery of 19,000 shares against payment did not result
in any loss to CBMF and that PW18 has not implicated him, but only relied
upon the record of CMac. He has refuted the prosecution case that the
10,000 missing shares received by CBMF, Mumbai handed over to A1 were
subsequently shown as the shares supplied by him and forwarded to
Hindalco for registration. He stated that two lots were on 27/11/1991 and
12/3/1992 (wrongly stated as 3/2/1992) as reflected in his contract note
Exh60 . He emphasized that he had delivered his 19,000 shares
independent of any other shares by Hindalco to CBMF, Mumbai as reflected
in the inward delivery challan Exh. Nos.63, 64 & 65 and outward delivery
challan Exh.Nos. 67 & 69 relating to his contract note Exh60. These
documents do not show the distinctive and certificate number of the
shares transacted thereunder. He disputed the research of P.W.18 showing
the missing 10000 shares on the ground that A3 was not referred to by
P.W.18 only commented on “unilateral documents prepared by parties” and
“not produced the records of CBMF” and relied upon “nonconfirmed
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59 SPSC.NO.3/2001-JUDGMENT
records of CMac”.
66. He stated that there was no corelation with regard to the shares
Exhibit138 annexed to the letter Exhibit68 .
67. A3 was also again specifically shown Exhibits 40/41 and 68/138
and put the prosecution case and the clear evidence of the purchase of the
initial 2.1L shares specified in the list Exhibit41 , the annexure to Exhibit
40 sent by the broker CMac to CBMF, Mumbai with their distinctive and
certificate numbers and the letter of P.W. 27 sending 9100 shares
admittedly sold by A3 to A1 bearing the same distinctive and certificate
numbers as the 10000 shares amongst the 2.1L shares shown on page 196
of the list Exhibit41 in his letter, Exhibit68 annexing the list of these
shares, Exhibit138 . A3 once again shrugged knowing anything of the
transaction between CMac and CBMF, Mumbai and insisted that his
transaction of 9100 shares was apart.
68. He was again asked about his letter delivering the shares to A1 on
behalf of CBMF and the acknowledgment of receipt as per his earlier 313
statement. His refrain was the documents being seized by the CBI. Alas he
has not called upon the prosecution to produce the said document which
would be the backbone of his defence.
69. It is argued on his behalf with regard to his further statement
recorded under Section 313 of the Cr.P.C that the reply of Hindalco
Industries Limited to CBI regarding the names of the share holders of 9100
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60 SPSC.NO.3/2001-JUDGMENT
shares, Exhibit73 shows that the shares stood in the name of Unit Trust of
st th
India (UTI) from 1 August, 1991 to 24 march, 1992 and were transferred
th
to CBMF on 25 March, 1992. Respondent No.3 would contend that he
th
had delivered 9100 shares on 12 March, 1992. If the shares were
registered in the name of UTI he could not have delivered those shares.
Hence he delivered some other 9100 shares. He has, of course, not given
particulars of those shares. Which other shares were delivered is, therefore,
not known. The delivery is admitted to be a day after A1 was handed over
th
the shares on 11 March, 1992. P.W. 27 sought to register those shares
th
soon thereafter under Exhibit68 on 26 March, 1992 upon verification of
the distinctive numbers and certificate numbers of the shares and
specifying them in the list Exhibit138. The shares were sent to UTI for
registration. They were ultimately registered and acknowledged in the
th
share acknowledgment receipt dated 7 April, 1992. The rectification of
the register of members to specify the name of the new registered holder of
the shares would take such time. This would explain the endorsement of
th
7 April, 1992 on Exhibit68 . The mention of the time period of the UTI
shares registered with Hindalco is of no consequence . It wholly ignores
the factual market position that prevailed in 199192 under Section 108 of
the Companies Act 1956 and the rules made thereunder for transfer of
shares of limited companies listed on registered stock exchanges prior to
the age of dematerialisation of shares. UTI may have held the shares
st
registered in its name from 1 August, 1991. The shares would continue in
the name of UTI until it is registered in the name of another holder who
presents the share transfer forms duly signed by UTI in its / her/ his favour.
There may be any number of bearer transfers during the period between
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61 SPSC.NO.3/2001-JUDGMENT
the two registrations. That is what precisely would have happened in this
case and that is how UTI shares have been with CMac. Some of the shares
sold by CMac show the previous registered holder to be UTI. The shares
may change a number of hands as has been shown in the share transfer
nd
forms annexed to the letter of Hindalco Industries Ltd., to CBI dated 2
September, 1999, Exhibit74 . That is precisely why and how stock brokers
would be involved in the transaction. The reference to the time period
mentioned in the letter, Exhibit73 of Hindalco Industries Ltd., is therefore,
both misconceived and mischievous. The reply of A3 to the specific case of
the prosecution under the list of shares, Exhibit168 which is the same as a
part of the shares under Exhibit41 and the list of 10,000 shares, Exhibit
98 is, therefore, not satisfactory or acceptable. Consequently it is clear that
9100 shares purportedly sold by A3 to A1 who accepted them on behalf of
CBMF is a part of the 10000 shares which P.W. 6 sent to CBMF, Mumbai and
which P.W.4 actually handed over to A1 and which were in turn a part of
the shares which were sold by CMac and sent to CBMF, Calcutta and which
were received by P.W. 6 as per the list, Exhibit41 annexed to the letter of
CMac, Exhibit40 .
70. The documentary evidence Exhibit41 & Exhibit138 is testimony to
the falsehood of A3. The very lists of shares would rubbish his enthusiastic
claim of no loss or no duplication.
71. The remaining 800 shares were registered in the name of M/s. Komaf
Financial Services Ltd., through accused No.4 and 100 shares were
registered in the name of P.W. 25. 600 out of these shares are stated to
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62 SPSC.NO.3/2001-JUDGMENT
have been transferred. These 900 shares are not shown to be got
registered in the name of CBMF, Mumbai together with the aforesaid 9900
+ 9100 shares.
72. The prosecution has not produced any evidence, oral or documentary
showing the sale of 800 shares alleged to have been sold by A4 to A1 on
behalf of CBMF, Mumbai as its General Manager and dealer from out of
10000 shares purchased from CMac under similar documents being his
contract note and vouchers. Hence the role of A4 as the broker of those
shares is not satisfactorily shown.
73. So far it is seen how 2.1 lakh shares were purchased by CBMF,
Mumbai upon the instructions of A1. It is seen how initially 10000 shares
are called by A1 from CBMF Calcutta to CBMF Mumbai sent through Rex
courier. Thereafter further 50000 shares are called by A1 from CBMF
Calcutta specifically through Airfreight courier and not entered in the
register maintained by CBMF Calcutta but shown as received in the inward
register maintained by CBMF Mumbai. This leaves 1.5 lakh shares of
Hindalco. These 1.5 lakh shares are sold in March 92 in two installments
of 1 lakh shares and 50000 shares back to the CMac the broker. These are
received by his representative in the office of CBMF Calcutta. The payment
for 1 lakh shares was directed to be made specifically to Canfina Bangalore
on 24/03/1992. The payment for 50000 shares was directed to be made to
Canfina, but not specifying Bangalore. However, the contract note for this
transaction shows the face value of all the 1.5 lakh shares @ Rs.600/
which would total to Rs.9 Crores. The deal slip of Citibank is for Rs.9
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63 SPSC.NO.3/2001-JUDGMENT
Crores and shows SCICI as the client for the face value of 1.5 lakh shares at
the net price of Rs.600 per share. The contract note of the broker CMac
and the dealslip of Citibank are of the same date – 26/03/92 for which
payment is made on 19/03/93 not to CBMF Mumbai who sold the shares,
but to Canfina Bangalore as specially requested by P.W.6 upon the
instructions only of A1.
74. The link for the payment of these shares to Canfina Bangalore and
the link to Citibank NA which issued the dealslip in favour of the client
SCICI is, therefore, required to be seen. It is upon this link that the
prosecution has sought to make out a case of criminal conspiracy between
A1 & A2 on the one hand in CBMF, Mumbai and A5, A6 and A7 on the
other in Canfina, Bangalore.
75. The transaction of purchase of 2.1 lakh shares for Rs.6.93 crores by
CBMF has found its way into the accounts of Canfina Bangalore. It is the
prosecution case that the call money transaction shown by accused No.1
was not reflected in the records of Canfina Bangalore because the Canfina
Bangalore falsified its record to show the purchase of 14% NCD bonds
instead. This has been the deposition of the Investigating Officer P.W. 28 in
para 40 thereof. This is reflected in the receipt of Rs. 7 crores under IBA
No.31085 from Canfina Bangalore. How this transaction was recorded will
have to be similarly seen.
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64 SPSC.NO.3/2001-JUDGMENT
| 19/9/91 | 106 | Deal Pad of Canfina for<br>purchase of 14% NCD of<br>“Mfund”(CBMF) for Rs. 7<br>Crores. | The deal pad shows IBA<br>No.31087 on “T Lane”<br>(Tamarind Lane) Bombay<br>(CBMF office in Bombay).<br>Lower portion of the deal<br>pad showing Internal<br>Branch Advice (IBA)<br>number and address is in<br>the handwriting of A6<br>(Evid: P.W. 21 para 2)<br>Cheque No.9050 is in the<br>handwriting of M. Dhiren,<br>since deceased.<br>The cheque number is of<br>the cheque issued of this<br>transaction.<br>The dealers prepare the<br>deal pad. A5 is the Chief<br>Dealer of Canfina<br>Bangalore (Evi: P.W.21 para<br>4)<br>(After writing the deal pad<br>P.W.21 makes xerox copies<br>to make entries in the<br>register of Canfina (Evi:<br>P.W. 21 para 4). |
|---|
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65 SPSC.NO.3/2001-JUDGMENT
| 19/9/91 | 107 | IBA No.31087 issued by<br>Canara Bank, Cunningham<br>Road Branch, Bangalore upon<br>“T lane” Bombay (CBMF<br>Mumbai) | P.W. 21 bought the IBAs<br>from the bank and sent<br>them to the branches.<br>It is received in the normal<br>course of the business of<br>P.W.21 who sent it to<br>Bombay (Evi: P.W. 21Para<br>7).<br>Canfina gives IBA numbers<br>after the deal goes through.<br>Original IBA is issued upon<br>the transaction entered into<br>in the IBA Issued Register<br>(Evi: P.W.21 para 8). |
|---|---|---|---|
| 19/9/91 | 108 | Entry in IBA issued register<br>under IBA No.31087 showing<br>“T Lane” Bombay for Rs. 7<br>Crores. | Written by A 6 (Evi: P.W. 21<br>para 6).<br>When the deal takes place<br>Canfina issues IBA. This is<br>the number allotted to the<br>deal on the IBA.<br>The entry is made in the<br>register when the IBA is<br>issued (Evi: P.W.21 para 6). |
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66 SPSC.NO.3/2001-JUDGMENT
| 19/9/91 | 109,<br>A,B &<br>C | Entry in cheque issued<br>register of Canfina Bangalore<br>showing transaction of 7<br>Crores with “T Lane Bombay”<br>against cheque No.50 (9050). | P.W. 21 made the entry on<br>19/9/91. 50 is the cheque<br>number in the series<br>beginning 9041.<br>After all the deals take<br>place during the day, P.W.<br>21 issues cheques upon<br>Canara Bank, Bombay for<br>issue of IBA on the<br>respective branches (Evi:<br>P.W.21 para 10).<br>The balance value in the<br>account from time to time<br>is shown by P.W. 21 (Evi:<br>P.W.21 para 11).<br>P.W. 21 would tally entries<br>at the end of the day and<br>show the balance lying in<br>the account (Evi: P.W. 21<br>para 12).<br>A6 has signed against the<br>entries of balances on<br>19/9/91 (Exhibit109A). |
|---|
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67 SPSC.NO.3/2001-JUDGMENT
| 19/9/91 | 110 A<br>& B | Register of stock of security<br>(SOS) of Canfina Bangalore<br>entry of 14% NCDs showing<br>the entry of 7 Crores against<br>“M fund” (CBMF). | Maintained by P.W.21.<br>Most of the entries in this<br>register are in his<br>handwriting.<br>The register shows entries<br>of market, purchase and<br>sales as also allocation.<br>The entry of 19/9/91<br>shows purchase by the<br>Mutual Fund of 14% NCD<br>for Rs. 7 Crores.<br>P.W.21 made this entry.<br>M Fund means CBMF.<br>The prosecution has shown<br>this endorsement as the<br>link between the acts of A1<br>and A2 in CBMF Mumbai<br>and those of A5, 6 & 7 in<br>Canfina, Bangalore. |
|---|---|---|---|
| 19/9/91 | 111 A | Physical register of Canfina,<br>Bangalore showing<br>14% NCD Bonds maintained<br>by Canfina Bangalore. | Entries are based on the<br>deal pad.<br>Made at the end of each<br>day.<br>(Evi: P.W. 21 para 14).<br>The entry dated 19/9/91 is<br>made by Satish Shetty for<br>purchase of NCD of 7<br>Crores from CBMF (110A). |
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68 SPSC.NO.3/2001-JUDGMENT
| | 113 | Bank account statement of<br>Canfina, Bangalore Canara<br>bank, Bangalore for<br>September, 91. | Certified under the Bankers<br>Book Evidence Act as<br>correct. |
|---|---|---|---|
| 19/9/91 | 113A | Entry of 7 Crores debited to<br>Canfina. IBA No. 13085(7)<br>under Cheque No.9050. | |
| 19/9/91 | 18 | Letter of CBMF, Mumbai to<br>Canara Bank showing<br>reference of IBA No.31087<br>dated 19/9/91 for Rs.7<br>Crores from Cunningam<br>Road, Bangalore being the<br>amount remitted by Canfina. | The letter is in the<br>handwriting of PW1 and<br>signed by A2 enclosing the<br>IBA for Rs.7 Crores<br>prepared by PW1 on<br>instructions of A2.<br>(Evi.PW1 Para.9) |
| 25/9/91 | 19 | Letter of CBMF, Mumbai<br>enclosing IBA No.31087<br>dated 19/7/91 for Rs.7<br>Crores. | IBA is drawn by Canfina,<br>Bangalore on Canara Bank,<br>Tamarind Lane branch for<br>the payment received from<br>Canfina, Calcutta. |
76. Thus there was a transaction between CBMF and Canfina Bangalore
for Rs.7 Crores reflected in the deal pad prepared by the dealers in Canfina
showing it to be purchase of 14% NCD bonds of CBMF for Rs. 7 crores for
which an IBA came to be issued and entered into IBA issued register and
the cheque issued register for the cheque that was issued in respect of the
transaction. The transaction was entered in the register of stocks and
securities and the physical ledger of NCD securities and came to be debited
in the statement of account of Canfina in Canara Bank.
77. This transaction apparently has nothing to do with the other
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69 SPSC.NO.3/2001-JUDGMENT
transactions of CBMF Mumbai of purchase of 2.1L shares except that both
the transactions are of the same date 19/9/91 , the deal slip chit and
voucher No.s 253 and 254, Exhibits 13, 14 and 16 being dated 19/9/91.
In fact in that transaction though the voucher Exhibit12 shows
interpolation in the date (from 19/9/91 to 12/9/91) the cheque for
payment of 2.1L shares the covering letter for transfer the deal slip
No.1774 and the vouchers, Exhibits 9,10,11,12 & 31 are dated 12/9/91.
78. However, aside from showing this fact, the prosecution has, not made
out a link between the 2 transactions of CBMF, Mumbai & Canfina
Bangalore in support of their case of criminal conspiracy of A1, A2, A5, A6
and A7.
79. However, the transaction of Canfina Bangalore is further reflected in
the documents of Canfina Bangalore for the sale to SCICI for Rs.7.5 crores
th
on 30 March, 1992. It would have to be seen whether this transaction of
Rs.7.5 Crores of 30/3/92 entered into by A5, A6 and A7 bears any link
with the sale of 1.5 L shares by CBMF, Mumbai to CMac and what would be
the financial loss to CBMF Mumbai, or Canfina Bangalore by the acts of A1,
A2, A5, A6 and A7, if any. We would have to remember the letters dated
18/3/93 and 19/3/93, Exhibits 50 and 51 (written after about a year of
the transaction of sale of shares to CMac March 92) confirming payment of
Rs.7.5 Cr made by CMac to Canfina, Bangalore, who was not at all
involved in the transaction of purchase or sale of the shares of Hindalco,
through American Express Bank Ltd, Calcutta on 28/3/92. This further
transaction comes close on the heels of such correspondence on 30/3/92
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70 SPSC.NO.3/2001-JUDGMENT
and is evidenced by further documents thus :
| 112 | Register of deal pads of<br>March, 1992 maintained<br>by Canfina. | ||
|---|---|---|---|
| 30/3/92 | 112A | Entry of IBA No.12678 for<br>Rs.7.50 Crores shown<br>against Clearing Section,<br>Calcutta. | The entry in the IBA<br>received by the Clearing<br>Section of Calcutta from<br>CMac. is made in the<br>handwriting of A7 and is<br>accepted by A7.<br>The entry is for the<br>transaction with CMac<br>(Evi: P.W. 21 para 17).<br>It shows the word<br>“Shares” in another ink.<br>P.W. 21 does not know for<br>what purpose the entry is<br>made and who has<br>written “Shares” below<br>the entry. (Evi: P.W. 21<br>para 17) |
| 114 | Bank account of Canfina<br>Bangalore in Canara Bank<br>for the month of March 92. | Certified under the<br>Bankers Book Evidence<br>Act as true. | |
| 30/3/92 | 114A | Entry of Rs.7.5 crores<br>credited to the account of<br>Canfina Calcutta received<br>from clearing section<br>Calcutta under IBA<br>No.12678. |
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71 SPSC.NO.3/2001-JUDGMENT
| 31/3/92 | 115 | Physical Ledger/register of<br>9% SCICI showing entries<br>dated 31/3/92. | The entry is made in the<br>handwriting of M. Dhiren,<br>since deceased.<br>Any market, purchase<br>register related to 9%<br>SCICI showing entries as<br>of 31/3/92 would be<br>entered in this register. |
|---|---|---|---|
| 30/3/92 | 116 | Physical register recording<br>the market, sale and<br>purchase. | Shows as securities sold<br>9% SCICI Bonds to Rahul<br>& Company for Rs.7.5<br>Crores.<br>Rahul and Company is<br>the sister concern of<br>CMac who sold 2.1 L<br>shares to CBMF initially<br>and who purchased 1.5 L<br>shares from CBMF<br>Mumbai later.<br>See Exhibit51. |
| 30/3/92 | 117 | Copy of cancelled Manual<br>cash voucher under IBA<br>No.12678 on clearing<br>section, Calcutta for Rs.7.5<br>Crores in favour of Rahul &<br>Co. | The voucher is for<br>allocating the securities<br>prepared by P.W.21. |
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72 SPSC.NO.3/2001-JUDGMENT
| 20/7/92 | 118 | Reversal entry of Rs.7.3<br>crores in a computer print<br>out of Stock of Securities<br>(SOS) register for 14%<br>NCD. | Purchased at the instance<br>of A6. (Evi: P.W.21 para<br>43).<br>Entry made for reversal of<br>ready forward transfer.<br>(Evi: P.W. 21 para 47).<br>The entry shows reference<br>of CBMF. |
|---|---|---|---|
| D3 | Allocation register showing<br>the entry of 7.5 crores<br>received from Rahul &<br>Company and 9% SCICI<br>bonds allocated to Rahul &<br>Company. | Produced at the instance<br>of accused No.6 in the<br>cross examination of<br>P.W.28 the Investigating<br>Officer. | |
| 18/03/93<br>(after about<br>1 year) | 50 | Carbon copy of letter<br>written by P.W.6 to CMac<br>requesting confirmation<br>regarding payment against<br>delivery of 1.5L shares of<br>Hindalco to Canfina,<br>Bangalore. | This has reference to<br>letters dated 24/03/92<br>Exhibit48 and 26/03/92<br>Exhibit49.<br>Exhibit48 requests<br>payment specifically to be<br>made to Canfina<br>Bangalore. Exhibit49,<br>sent two days thereafter<br>does not specify to whom<br>to make payment.<br>Exhibit50 requires<br>confirmation for payment<br>upon Exh48 and Exh49.<br>The payment made to<br>Canfina is written in<br>another ink and is not<br>inthe carbon copy. |
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73 SPSC.NO.3/2001-JUDGMENT
| 19/03/93 | 51 | Letter of CMac to CBMF<br>referring to letter of CBMF<br>Calcutta dated 18/03/93<br>confirming payment of 7.5<br>crores to Canfina through<br>American Express Bank<br>Ltd. Calcutta on 28/03/92<br>for 1.5 lakhs shares of<br>Hindalco. | For the shares sent by<br>CBMF Calcutta to CMac in<br>March 92 the payment is<br>confirmed to have been<br>made in March 92 and<br>confirmed in in March, 93<br>to Canfina. It is made in<br>March, 93.<br>Canfina (Bangalore) was<br>otherwise not concerned<br>with this transaction at<br>all.<br>Canfina (Calcutta) has<br>no role to play in this<br>transaction at all.<br>Confirmation to Canfina<br>would mean and imply<br>Canfina, Bangalore and<br>none other. |
|---|
80. Hence is the prosecution case of criminal conspiracy between A1, A2,
A5, A6 and A7 CMac has confirmed payment of Rs.7.5 Crores made to
Canfina Bangalore which is proved by the aforesaid letters Exhibit50 and
Exhibit51 not challenged by A5, A6 or A7 in the evidence of the
proprietor or other employees. The entry of 7.5 crores in favour of Rahul &
Company, the sister concern of CMac, is made in respect of SCICI bonds by
Canfina, Calcutta. Though 7.5 crores is credited in the account of Canfina,
Bangalore upon IBA No.12678 received from Clearing Section Calcutta in
respect of SCICI bonds, the physical register of SCICI does not show this
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74 SPSC.NO.3/2001-JUDGMENT
entry. Yet computer print out shows 9% SCICI sold to Rahul & Company
st
on 31 March, 1992 of Rs.7.5 crores. Since this entry was shown to be
th
wrongfully effected, a reversal entry is shown on 20 July, 1992 of Rs.7.3
Crores. The entry of 7.5 Crores under IBA No. 12678 is entered in the deal
pad register. Just as there is no apparent reason for crediting Canfina
Bangalore with Rs.7.5 Crores by Cmac on 28/3/92, there is no apparent
reason for crediting the sister concern of CMac, Rahul & Co., 2 days
thereafter by Canfina, Bangalore. The transaction accepted and affirmed
by A5, A6 and A7 is left wholly unexplained with regard to the receipt on
28/3/92 of Rs.7.5 Crores and the corresponding payment of Rs.7.5 Crores
on 30/3/92 by Canfina Bangalore. The explanation sought to be given by
A5, A6 and A7 is that the purpose of 14 NCD of Rs. 7 Crores has
culminated in the sale of SCICI bonds to Rahul & Co.,
81. It has to be seen whether the case of the prosecution that accused
Nos. 1 and 2 in Mumbai acted in conspiracy with A5, A6 and A7 in
Bangalore for a single transaction shown in the aforesaid documents is
correct and what that transaction was. The initial transaction was of
purchase of shares. It was shown as Call Money Transaction. (CM
transaction) Such a transaction could not have been entered into by CBMF,
Mumbai or by accused No.1 on behalf of CBMF Mumbai for total lack of
authority. The shares have indeed being sold by CMac and received by the
office of CBMF, Calcutta. The shares have been sent to CBMF, Mumbai, in
various installments – initially 10000 shares, followed by 50000. The
remaining 1.5 lakh shares are unaccounted for atleast to the extent of how
they were sent from the office of CBMF, Calcutta to CBMF, Mumbai. The
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75 SPSC.NO.3/2001-JUDGMENT
link sought to be established with the office of Canfina, Calcutta is upon
the case that the call money transaction was with Canfina, Bangalore but
was shown as purchase for NCD Bonds hence leaving no record of call
money transaction in Canfina, Bangalore. It could not have been entered
into by Canfina, Bangalore. Having shown the transaction as purchase of
14% NCD the sale of that NCD is shown in respect of 9% SCICI bonds.
82. However what has been left unexplained is how the shares of 6.93
crores or call money transaction of that extent came to be to the extent of 7
crores in Canfina Bangalore as a purchase transaction and 7.5 crores as the
sale transaction. Expenses for registration and stamp duty are stated to
have been added to the transaction but the exact amount of such duties
paid is not reflected in the above documents. The amount of R.4.67 lakhs
received in excess of the principal amount of Rs.6.93 Crores and interest
thereon as deposed by P.W. 1 is not explained by either A1 or A2 or A5, A6
and A7. P.W. 1 has stated in his cross examination by accused No.5 that
apart from the instructions that he received (from A1) he was not shown
any record to show the call money transaction. P.W.1 who served as
GradeI Secretary in the Canbonus Scheme of CBMF had never seen
another transaction like this; this was the only CM transaction during his
tenure in which he received more amount (than the principal + interest) .
83. Similarly P.W.2 has deposed in his crossexamination by accused No.5
that the return of CM transaction would be of exactly the principal amount
+ interest. CBMF record does not show any CM transaction other than this
transaction with Canfina. This is in consonance with the RBI circular, Exh
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76 SPSC.NO.3/2001-JUDGMENT
22. Further this transaction was under a normal banker's cheque Exh.9
which could not have been used for CM transaction and which can only be
interbank transaction or inter mutual fund transactions done only through
RBI cheques. Hence though the books of CBMF Mumbai show this as a CM
transaction, it could not have been so. Yet the link in the unlawful acts of
A1 & A2 on the one hand and A5, A6 & A7 to the other in a single
transaction is not clearly established despite reference to the word “Shares”
in the deal pad or reference to “M Fund” (CBMF Mumbai) in the SOS
register.
84. This is how A5, A6 and A7 in Canfina, Bangalore are stated to be
involved in the transaction for purchase of shares by CBMF Mumbai from
CMac. Despite the purchase of shares the transaction was recorded as call
money transaction by A1 and A2. The involvement of A5, A6 and A7 in the
transaction is sought to be shown by the prosecution only through the
payment made to Canfina Bangalore for no apparent reason.
85. The prosecution case of criminal conspiracy between accused Nos.1
and 2 in CBMF Mumbai and A5, A6 and A7 in Canfina Bangalore is sought
to be shown essentially from the letters dated 24/3/1992 and 26/3/1992
of P.W. 6 to CMac and the letter dated 19/3/1993 of CMac to CBMF
referring to the letter of CBMF Calcutta of 18/3/1993 confirming payment
of Rs.7.5 Cr. to Canfina for 1.5L shares of Hindalco, Exhibit51 . Though
the reference specifically to Canfina Bangalore is made only in the letter
dated 24/3/92, Exhibit48 and not the letter dated 26/3/92, Exhibit49 or
the letter of Cmac dated 19/3/93 Exhibit51 (sent a year later) confirming
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77 SPSC.NO.3/2001-JUDGMENT
the payment, Canfina Bangalore alone is seen to be involved in both the
transactions in view of the consolidated letter of CMac dated 19/3/93,
Exhibit51 and the consolidated contract note, Exhibit80 . Indeed the
transaction of sale of shares having been shown as callmoney transaction
has been linked with Canfina Bangalore and has been shown as purchase
of 14% NCD Bonds by Canfina Bangalore, which is not for the exact
amount of the transaction. That transaction is for 7 Crores instead of
R.6.93 Crores and is shown to have culminated in the later transaction of
7.5 Crores of Rahul & Company, the sister concern of CMac. The
explanation of A5, A6 and A7 of Canfina Bangalore to delink the two
transactions accounting for the registration and stamp duty required to be
paid thereon is indeed not satisfactory. However a clear link of A5, A6 and
A7 with A1 and A2 in a single transaction in which shares came to be
siphoned off or its consideration came to be appropriated has not been
brought out by the prosecution to make out a case of criminal conspiracy as
per the parameters shown in the case of Navjot Sandhu Vs. State (NCT of
Delhi) (2005) 11 SCC 600 .
86. What the prosecution has clearly established beyond reasonable
doubt is the actual loss to CBMF Mumbai of 10000 shares of Hindalco
which were purchased @ Rs.330 per share by A1 on behalf of CBMF,
Mumbai. A1 having admittedly signed documents Exhibits 9 to 13 except
E xhibit 12 is shown to be fully accountable for the loss caused to CBMF
Mumbai to the extent of Rs.33 lakhs. The misappropriation of these shares
is shown by 9100 shares out of 10000 shares bearing the same distinctive
and registration numbers being again sold by A3 to A1 on behalf of CBMF,
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78 SPSC.NO.3/2001-JUDGMENT
Mumbai.
87. The prosecution has hence established the case of A1 committing
criminal breach of trust as the General Manager of CBMF, Mumbai by
siphoning off 10000 shares out of 2.1 lakh shares purchased by CBMF
Mumbai and left unaccounted by deceiving CBMF Mumbai to the extent of
the value of those 10000 shares being Rs.33 lakhs @ Rs.330 per share
purchased by CBMF Mumbai by not accounting for the same in the books
of CBMF Mumbai which caused damage and harm to CBMF Mumbai to the
extent of value of the shares and by fraudulently and dishonestly entering
into a transaction for purchase and sale of 9100 of the same 10000 shares
out of 2.1 lakh shares and thus committing the offence defined under
Section 405 of the Indian Penal Code (IPC) and punishable under Section
409 thereof.
88. The prosecution has also made out a clear case of A1 having
committed the offence of dishonestly and fraudulently misappropriating
the property of CBMF, Mumbai by him as a public servant, being the
General Manager of CBMF, Mumbai and of obtaining for himself the
valuable thing contained in 10000 shares of CBMF, Mumbai and the
consequent pecuniary advantage to the extent of the value of those 10000
shares which aggregates to Rs.33 lakhs @ Rs.330 per share. Following as a
corollary therefrom, the prosecution has made out a clear case of the
criminal misconduct of A1 as a public servant, for the aforesaid offences of
which are punishable under Sections 13(1)(c ), 13(1)(d) and 13(2) of the
Prevention of Corruption Act, 1988 , (PCA).
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79 SPSC.NO.3/2001-JUDGMENT
89. The prosecution has not made out a specific case of A1 having
committed other offences including entering into a criminal conspiracy
with the other accused with which also A1 is charged.
90. The prosecution has also not made out any case of A2 having
committed the offence of aiding and abetting A1 in preparing false
documents and thus committing breach of trust since A2 worked under the
instructions of A1.
91. The prosecution has made out a clear case beyond reasonable doubt
of A3 aiding and abetting A1 to commit criminal breach of trust by showing
the sale of 9100 shares of Hindalco out of the 10000 shares already
purchased by A1 on behalf of CBMF, Mumbai from CMac @ Rs.320 per
share which were shown to be sold from amongst 19000 shares of
Hindalco under his contract note, Exhibit60 for Rs.60.80 lakhs and thus
causing pecuniary loss to the extent of the sale prices / purchase price of
these 9100 shares already purchased @ Rs.330 per share and later
purchased @ Rs.320 per share and thus having committed the offence of
receiving stolen property being the payment @ Rs.320 per share for 9100
shares of Hindalco which were already sold by CMac to CBMF, Mumbai for
consideration under his contract note Exhibit60 punishable under Section
411 of the IPC.
92. The prosecution has not made out a specific case of A3 having
committed other offences including entering into criminal conspiracy with
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80 SPSC.NO.3/2001-JUDGMENT
the other accused beyond reasonable doubt.
93. The prosecution has not made out any case of A4 having entered into
any criminal conspiracy with accused No.1 in respect of the sale of 800 out
of 19000 shares sold by A3 to CBMF Mumbai or of receiving stolen
property punishable under Sections 120B or 411 of IPC.
94. The prosecution has not clearly made out the case beyond reasonable
doubt against accused Nos. 5, 6 and 7 of having entered into any criminal
conspiracy with A1 in respect of the purchase of 2.1 lakh shares of
Hindalco or having forged documents or having misappropriated those
shares or having obtained any pecuniary advantage therefrom as public
servants by corrupt means and thereby having committed the offence of
criminal misconduct.
95. Consequently the prosecution has failed to establish the charges
made out against A2, A4, A5, A6 and A7. The prosecution has made out
the charges to the above extent only against A1 and A3.
96. Since the prosecution has not clearly made out the case of conspiracy
between accused No.1 and A5, A6 and A7 of misappropriating the funds of
CBMF, Mumbai and showing that those funds went into Canfina, Bangalore
camouflaged and shown as purchase of 14% NCD bonds and the
consequent sale of 9% SCICI bonds to Rahul and company, the sister
concern of CMac despite the words “M fund” and “Shares” in the
documents executed by them, A5, A6 and A7 would require to be given
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81 SPSC.NO.3/2001-JUDGMENT
benefit of doubt in respect of the various charges shown by the prosecution
against them.
97. This case is an economic offence. It involves pecuniary loss. Upon
seeing the clear case against A1 under Section 409 IPC and against A3
under Section 411 IPC, the loss would be required to be made good by A 1
and A3 to the public institution which bore it by the act of its officer, A1
and to the public exchequer by the acts of its citizen who was a stock
broker, A3.
98. Hence A1 is convicted of dishonestly and fraudulently receiving
10000 shares of Hindalco from out of 2.1 lakhs shares for which
consideration of Rs.6.93 crores was paid by CBMF, Mumbai and
consequently became the property of CBMF, Mumbai and which was
dishonestly and fraudulently misappropriated and converted to his own use
by him being entrusted with the property of CBMF, Mumbai and having
dominion over it in violation of the RBI directions in such investment for
which he had no authority to transact and by which CBMF suffered loss to
the extent of the purchase value/sale value of 10000 shares @ of Rs.330
per share and thus committing offence of criminal breach of trust by public
servant punishable under Section 409 of the IPC.
99. A1 is also convicted of abusing his position as a public servant as
General Manager/Dealer of CBMF, Mumbai to obtain undue pecuniary
advantage for the price of 10000 shares of Hindalco fraudulently
misappropriated by him thus constituting criminal misconduct punishable
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82 SPSC.NO.3/2001-JUDGMENT
under Sections 13(1)(c ), 13(1)(d) and 13(2) of the PCA.
100. A1 is given benefit of doubt and acquitted of the other charges.
101. A2 is acquitted of the charge of entering into any conspiracy with A1
or aiding and abetting accused No.1 in the commission of offence of
preparation of false documents and entering into transaction which he was
not authorized to transact and committing any breach of trust by
misappropriation of 10000 shares of Hindalco received from CMac,
Calcutta or of forgery or fabrication of documents, or of obtaining any
pecuniary advantage or of criminal misconduct as he had acted under the
directions of A1 being subordinate to A1 as Fund Manager of CBMF,
Mumbai.
102. A3 is convicted of the offence of aiding and abetting A1 to commit
criminal breach of trust by showing the sale of 9100 shares @ Rs.320 per
share out of 10000 shares already sold by CMac to CBMF, Mumbai and
produced by CBMF, Mumbai for consideration @ Rs.330 per share and
bearing the same distinctive and certificate numbers in respect of which
criminal breach of trust was committed by A1 and thus causing pecuniary
loss to the extent of the sale price / purchase price of those 9100 shares
knowing and having reason to believe that it was stolen property and thus
committing the offence of receiving stolen property punishable under
Section 411 of the IPC.
103. A3 is given benefit of doubt and acquitted of other charges.
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83 SPSC.NO.3/2001-JUDGMENT
104. A4 is acquitted of the charge of receiving stolen property as none of
the shares purchased by CBMF, Mumbai from CMac, stated to be sold by A4
to CBMF, Mumbai are shown to be sold by him.
105. A5, A6 and A7 are given benefit of doubt and thereby acquitted of
the charge of entering into criminal conspiracy with A1 by completing the
transaction of purchase of shares as callmoney transaction and of falsifying
accounts and documents and committing forgery and using forged
documents as genuine in their capacity as public servants.
106. Upon the conviction of A1 the question of compensation under
Section 357 of the Cr.P.C is mandatorily required to be considered as per
the judgment in the case of Ankush Shivaji Gaikwad Vs. State of
Maharashtra (2013)6 SCC 770 . A1 caused loss to CBMF, Mumbai and to
the public treasury by issuing cheque for purchase of 2.1L shares of
Hindalco, but accounted for only 2L shares by way of receiving, registering
and / or the consequent sale. He misappropriated to his own use the
remaining 10000 shares which were found missing. He must make good
the loss to CBMF, Mumbai with the usual commercial rate of interest to
CBMF, Mumbai under Section 357(3) of the Cr.P.C with all accrued interest
thereon until payment / realisation. This shall be entitled to be recovered
by the CBI on behalf of CBMF, Mumbai as arrears of land revenue to
effectuate the purport and intent of the judgment.
107. A3 was given and took those very shares and purported to sell (re
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84 SPSC.NO.3/2001-JUDGMENT
sell) them to CBMF, Mumbai though they were not his shares and
accordingly received stolen property and made a profit / undue gain
therefrom knowing it to be the same shares purchased by CBMF, Mumbai
earlier and received by A1 on its behalf but a day before. He must also
make good the sale price of 9100 shares received by him to the public
Treasury under Section 357(3) of the Cr.P.C. with the usual commercial rate
of interest. The sale price of the shares with interest until payment /
realisation shall be forfeited to the State and shall be entitled to be
recovered by the CBI as arrears of land revenue to effectuate the purport
and intent of the judgment.
108. A1 to A3 are asked on the point of sentence.
109. Accused No.1 stated that he is the only earning member of his family,
his son is visually impaired, he has high BP, sugar problem as also heart
ailment. He, therefore, stated that the sentence may not be harsh.
110. Accused No.3 stated that he has already been sentenced to suffer
imprisonment of 5 years, which he is undergoing. He, therefore, stated
that the sentence be not harsh.
111. Advocate on behalf of accused No.3 requested to address the Court.
He was allowed to do so. He stated that accused No.3 had already
surrendered bail and was undergoing imprisonment. He also stated that
the order of compensation must not be harsh as it would be unexecutable
th
because accused No.3 has been a notified person since 8 June, 1992. The
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85 SPSC.NO.3/2001-JUDGMENT
custodian has taken charge of his properties, both movable and immovable.
Some of the properties have been sold and some are going to be sold.
Hence he contended that the compensation under Section 357 of the Cr.P.C
may be reasonable.
112. The learned Special P.P stated that accused No.3 had surrendered bail
to undergo imprisonment in another case. He has not undergone
imprisonment in this case. The imprisonment in another case is of no
consequence. He exalted the Court to consider the impact of the crime of
accused No.3 on the society. He reminded the Court of the fact that such
crimes affected the economy of the entire country driving the legislature to
enact the Special Courts Act. He, therefore, urged that the sentence as also
the compensation should be commensurate with the gravity of the offence.
113. It is trite that the sentencing policy of the Court must reflect the
conscience of the society. It must signal the deprecation of the wrong done
to the society as also the public institutions. However, crimes of the
economic nature lend themselves to punishment by compensation more
arithmetically accurately than crimes against human body, public health,
safety, convenience, decency, morals, religion or public justice. However
upon the mathematical calculation of the loss caused by both the accused
to the public exchequer, the sentence of imprisonment would certainly
required to be tempered.
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86 SPSC.NO.3/2001-JUDGMENT
114. Hence the .following order:
1. A1 is found guilty and convicted of committing the offence of
criminal breach of trust by public servant punishable under Section
409 of the IPC and sentenced to suffer Rigorous Imprisonment for a
term of 1 (one) year and to fine in a sum of Rs. 1 lakh and i/d to
suffer further R.I for a period of 3 months.
2. A1 is also found guilty and convicted of committing the offence
of abusing his position as public servant being General
manager/Dealer of CBMF, Mumbai by obtaining undue pecuniary
advantage for the purchase of 10000 shares of Hindalco dishonestly
and fraudulently misappropriated by him from CBMF Calcutta
punishable under Sections 13(1)(C), 13(1)(d) and 13(2) of the
Prevention of Corruption Act, 1988 and sentenced to suffer Rigorous
Imprisonment for a term of 1 (one) year.
3. The aforesaid sentences shall run concurrently.
4. A1 shall pay compensation of Rs.33,00,000/ (Rupees Thirty
three Lakhs) being the purchase value / sale value of 10000 shares
misappropriated by A1 for which consideration was paid by CBMF,
Mumbai @ Rs.330 per share aggregating to Rs.33 lakhs with interest
thereon @ 18% p.a from the date of the transaction of the purchase
of those shares when the cheque of Rs.6.3 Crores was issued by A1
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87 SPSC.NO.3/2001-JUDGMENT
th
on behalf of CBMF, Mumbai being 12 September 1991 till the date
of this judgment. A1 shall pay further interest @ 18% pa from the
date of this judgment till payment/reaslisation. The presecution shall
be entitled to recover receive the compensation as arrears of land
revenue.
5. A1 is found not guilty and given benefit of doubt and acquitted
of all other charges.
6. A2 is found not guilty and acquitted of the charge of entering
into any conspiracy with A1 or aiding and abetting accused No.1 in
the commission of offence of preparation of false documents and
entering into transaction which he was not authorized to transact
and committing any breach of trust by misappropriation of 10000
shares of Hindalco received from CMac as he had acted under the
directions of A1 being subordinate to A1 as Fund Manager of CBMF,
Mumbai.
7. A3 is found guilty and convicted of committing an offence of
receiving stolen property being 9100 shares of Hindalco knowing and
having reason to believe that in respect of those shares A1 has
committed criminal breach of trust and thus it was stolen property
punishable under Section 411 of the IPC and sentenced to suffer RI
for a term of 1 (one) year and to pay fine of Rs.1 lakh and i/d to
suffer further RI for a period of 3 months.
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88 SPSC.NO.3/2001-JUDGMENT
8. A3 shall pay compensation of Rs.32,00,000/(Rupees thirtytwo
lakhs only) being the sale value of 9100 shares received as stolen
property by A3 for which consideration was paid by CBMF, Mumbai
@ Rs.320 per share aggregating to Rs.29.12 lakhs with interest
thereon @ 18% pa from the date of the transaction of the purchase of
th
those shares being 12 March, 1992 till the date of this judgment.
A3 shall pay further interest @ 18% p.a from the date of this
judgment till payment / realisation. The prosecution shall recover
the compensation as arrears of land revenue.
9. A3 is found not guilty and given benefit of doubt and acquitted
of all other charges.
10. Accused No.4 is found not guilty and acquitted of the offence of
receiving 800 shares of Hindalco from out of the 10000 shares of
Hindalco being the property of CBMF, Mumbai knowing and having
reason to believe that in respect of those shares A1 has committed
criminal breach of trust and is thus stolen property.
11. A5, A6 and A7 are given benefit of doubt and acquitted of the
charge of entering into criminal conspiracy with A1 or of falsifying
accounts or documents or committing forgery or issuing forged
documents as genuine in their capacity as public servants as also of
offences under Sections 13(1)(c), 13(1)(d) and 13(2) of the
Prevention of Corruption Act, 1988.
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89 SPSC.NO.3/2001-JUDGMENT
12. The bail bonds of A1 to A3 are cancelled. A1 is taken in
custody. A3 is already in custody. The Superintendent of the
relevant prison shall be given a copy of this judgment by the
prosecution for computing his term of imprisonment in this case.
13. The bail bonds of A2, A4, A5, A6 and A7 are discharged.
14. A1 and A3 shall be entitled to set off the period of
imprisonment, if any, already undergone by them in this case.
15. It is recorded that the Advocate appointed by the Maharashtra
Legal Services Authority as Legal Aid Advocate for A6 has NOT
appeared and argued for A6 who represented his case personally by
way of cross examination as also arguments before the Court. A6
shall pay the fees of the Advocate appointed on his behalf at his
instance on all the dates that he himself appeared before the Court
and cross examined the witnesses as also argued before the Court at
the time of the framing of the charge and after the trial. The
Maharashtra Legal Services Authority shall deduct such extent of fees
payable to the Advocate of A6 from the final payment to be madeto
him. This direction is specifically passed to prevent abuse and misuse
of the legal aid facility provided to the accused who insist upon
obtaining the services not needed or required by them as in the case
of A6 who was fully abreast of his case and very efficiently
represented it himself despite the appointment of his Advocate.
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90 SPSC.NO.3/2001-JUDGMENT
16. The Court records its satisfaction and appreciation of the
diligence, sincerity and commitment of the young, learned Special
Public Prosecutor Mr. Limosin in conducting the trial.
(ROSHAN DALVI, J.)
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