IN THE COURT OF SH AJAY GUPTA, LD.

SPL JUDGE (CBI, PC ACT)

ROUSE AVENUE DISTRICT COURTS, NEW DELHI

IN THE MATTER OF:

Central Bureau of Investigation …..Prosecuting Agency

Versus
Vinay Mittal & Ors …..Accused(s)

FIR no: RC/12E/2016

U/S: 420/419/467/468 r/w 120B IPC
& 13(1)(d) r/w 13(2) PC Act
PS: CBI/EO/ND

APPLICATION ON BEHALF OF A-2, Mr. S C ROUT SEEKIGN RECALLING OF

WITNESS PWs - , UNDER SECTION 311 OF CrPC 1973.

MOST RESPECTFULLY SHOWETH:

1. The brief facts of present case are as follows:

 Mr. Vinay Mittal (A-1), opened a current account with the Corporation
Bank, Vasant Vihar branch on 28.01.2012 in the name of his firm M/S
Delhi Trading Company, a/c no: CBCA-299.
 Subsequently Mr. Mittal (A-1) submitted a loan application seeking
working capital cash credit facilities for his firm M/S Delhi Trading
Company with the aforesaid branch of Rs. 300 Lacs, for enhancement of
his rice trading business.
 A-1 presented Mr. Vipan Kumar Luthra (A-3) as Mr. V K Gupta, who
was purported to be A-1’s uncle and owner of the property given as
collateral security, situated at: R-13/5, Raj Nagar, Ghaziabad, UP.
 Mr. SC Rout (A-2) the then Branch Manager Corporation Bank, Vasant
Vihar branch duly engaged the services of empaneled Due Diligence
Agency, Valuation Agency and empaneled Advocate as prescribed in the
bank circulars and guidelines.
 Mr. Rout (A-2) received a positive due diligence report dated
23.02.2012 from Matrix Credit Risk Control Pvt. Ltd. under the
signature of Mr. Sanjiv Kapoor, he further received a legal opinion
dated 15.02.2012 from Mr. Vivek Jain, empaneled advocate and he
received valuation report dated 14.02.2012 under the signatures of Er. B
P Singh.
 Subsequently the loan proposal was forwarded to the Zonal Office,
Corporation Bank, and after going through the application, documents
submitted by the borrower and the reports of the empaneled agencies the
Central Credit Processing Center of the Zonal Office, prepared and
forwarded Memorandum to the Chief Manager dated 01.03.2012 to the
 Vasant Vihar Branch for sanction by Mr. Rout (A-2), as the present loan
amount fell within his sanction powers.
 Mr. Rout (A-2) relying on the aforesaid reports and analysis conducted
and on the basis of documents at hand sanctioned the aforesaid loan on
06.03.2012.
 The said loan account became NPA on 01.10.2015. During the recovery
proceedings it was discovered that the Property documents of the
Collateral security submitted by the borrower were forged and the
guarantor had impersonated the real owner of the property.
 Subsequent to this revelation a complaint was made to the CBI by Mr.
Rathnakara the then DGM, Zonal Office, Corporation Bank, vide letter
dated 05.08.2016. It is pertinent to mention that in the aforesaid
complaint apart from A-1 and A-2 the empaneled advocate Mr. Vivek
Jain has been named as an accused.

2. It is submitted that in the present chargesheet D-82 is HO circular no 86/2003

which elaborates the duly of the empaneled lawyers in establishing the
authenticity of the title and non-encumbrance of the property in question.
However, PW-15, i.e. Mr. Vivek Jain (PW-15) has lied blatantly on oath,
during his examination in chief and the true facts have not come on record.
3. It is submitted that in the present chargesheet D-83 is HO circular no 730/2008
which elaborates the duly of the empaneled Due Diligence Agency in verifying
the authenticity and genuineness of the financial documents and KYC
documents submitted by the borrower etc. However, PW-22, i.e. Mr. Arpan
Sengupta (PW-22) has lied blatantly on oath, during his examination in chief,
he has further gone on and made averments about the internal loan approval
procedure that he cannot have any knowledge about. It can be stated without a
shadow of doubt that true facts have not come on record.
4. It should be mentioned additionally that CBI has annexed the credit
consultancy service agreement signed between Corporation Bank and M/s
Matrix Credit Risk Controls Pvt. Ltd. in CBI v. Davinder Kr. Jain & Ors. The
aforesaid agreement stipulates the activities to be covered under due diligence
exercise by M/s Matrix Credit Risk Control Pvt. Ltd. These include verification
of Bank account of the applicant for the last 6 months, Verification of balance
sheets and auditor’s reports, IT return etc. from Income Tax Office, verification
of the property offered for mortgage and site verification etc.
5. The erstwhile counsel for A-2 (Mr. SC Rout) has not examined the witnesses
(PWs 22 and 15) on this aspect. It is submitted that the said aspect goes to the
root of the case and the non-examination of the witnesses on this point would
cause grave injustice to the applicant/accused.
6. It is further submitted that PW-24 and PW-28, namely Mr. Amit Kumar and
Mr. Parimal Singh (GRID members) have made assertions that there was a
focus by the GRID regarding verification of guarantor and collateral security,
however there was sufficient verification of the collateral property and the
counsel for A-2 (Mr. SC Rout) has not examined the witnesses on this aspect. It
is submitted that the said aspect goes to the root of the case and the non-
 examination of the witnesses on this point would cause grave injustice to the
applicant/accused.
7. It is submitted that the PW-14, Neeti Saini in her examination-in-chief has
opined that the suggestions made by her in her departmental scrutiny of the
legal opinion had not been complied with. However, the suggestions made by
the witness were very regular and ordinary in nature and the same were
complied with by the applicant/accused before the disbursement of the loan.
8. In addition to the aforementioned witnesses the applicant accused seeks the
liberty to recall the following witnesses to the stand in order to put his case to
them to ensure a successful and impartial trial for furtherance of justice. The
witnesses are:
o PW-29, Mr. Yogesh Mhakse,
o PW- , Mr. Rathnakara
o PW- , Mr. Venkatnarayan – This witness was just as responsible for the

9. It needs to be additionally added that the applicant accused is a lay person who
doesn’t understand the intricacies of law and does not know when one should
give an suggestion to further their case and when an objection or a question
with respect to the testimony is necessary in furtherance of the case.
10. It is submitted that the applicant’s intention is only to bring out the truth so that
the true facts and circumstances as they existed at the time the alleged offence
was committed, come out and the same are presented before this court.
11. The applicant further finds it apposite to add that his intentions are not to delay
the trial, his only intention is to assist this hon’ble court to bring out the
absolute truth before this court.
12. The applicant undertakes to only cross-examine the witnesses on the aspects
that they have spoken about in the examination in chief recorded before this
Hon’ble Court. The applicant and his counsel may restrict themselves to the
only the aspects mentioned above at the time of cross-examination.
13. The applicant undertakes that the present application is not an attempt to derail
the present trial and delay the its outcome. The applicant undertakes that all the
aforementioned witnesses can be satisfactorily cross-examined in an average
time of 60 minutes. Therefore, even if the applicant is given a 1 or 2 dates for
cross-examination of all the witnesses mentioned herein he would be most
obliged and would ensure that the true facts are brought to the knowledge of
this Hon’ble Court.
14. The applicant further submits that the cross-examination of the aforementioned
witnesses is imperative to truthful and lawful, dispensation of justice.
15. That the Hon’ble Delhi High Court has held in Ashok v. State; 2019 SCC
Online 7059, that even if there was negligence on part of the applicant/accused
during the cross-examination of material witnesses and the court is of the
opinion that cross-examination of prosecution witnesses was necessary for a
just decision of the case then the court should allow the request of the
petitioner. It was categorically held that:
“It is the duty of every Court to ensure that fair and proper
opportunities are granted to the accused for just decision of the case.
 In furtherance of the above, adducing of evidence by the accused in
support of his defence is also a valuable right and allowing the same
is in the interest of justice.”

16. It was further held in Krishna Kumar vs. State of NCT of Delhi, 2022 SCC
Online Del 2015.
“the petitioner in the present case had ample opportunity to cross-
examine the aforesaid witness but he did not utilise the same. Be that as
it may, this court cannot lose sight of the fact that a fair trial is the
hallmark of criminal procedure. It entails not only the rights of the
victims but also the interest of the accused. It is the duty of every
Court to ensure that fair and proper opportunities are granted to the
accused for just decision of the case. In furtherance of the above,
adducing of evidence by the accused in support of his defence is also a
valuable right and allowing the same is in the interest of justice.”

17. The Hon’ble Supreme Court has observed in Rajaram Prasad Yadav v. State of
Bihar, (2013) 14 SCC 461 that, following some of the principles need to be
kept in mind while dealing with an application under section 311 CrPC are as
follows:
“17.8. The object of Section 311 CrPC simultaneously imposes a duty
on the court to determine the truth and to render a just decision

17.9. The court arrives at the conclusion that additional evidence is

necessary, not because it would be impossible to pronounce the
judgment without it, but because there would be a failure of justice
without such evidence being considered.

17.10. Exigency of the situation, fair play and good sense should be the
safeguard, while exercising the discretion. The court should bear in
mind that no party in a trial can be foreclosed from correcting errors
and that if proper evidence was not adduced or a relevant material
was not brought on record due to any inadvertence, the court should
be magnanimous in permitting such mistakes to be rectified.

17.11. The court should be conscious of the position that after all the
trial is basically for the prisoners and the court should afford an
opportunity to them in the fairest manner possible. In that parity of
reasoning, it would be safe to err in favour of the accused getting an
opportunity rather than protecting the prosecution against possible
prejudice at the cost of the accused. The court should bear in mind that
improper or capricious exercise of such a discretionary power, may lead
to undesirable results.

17.12. The additional evidence must not be received as a disguise or to

change the nature of the case against any of the party.
 17.13. The power must be exercised keeping in mind that the evidence
that is likely to be tendered, would be germane to the issue involved
and also ensure that an opportunity of rebuttal is given to the other
party.”

18. That it needs to be kept in mind that because the counsel for the
applicant/accused has been duly accorded the opportunity to cross-examine the
witnesses and there being averments against him the evidence tendered by
witnesses mentioned above could be used to deliver a judgment but in the
present case it would be impossible to arrive at a just conclusion if the
applicant/accused isn’t given an opportunity to cross-examine the witnesses.
19. That there are plenty of documents on record that reflect that the averments of
the witnesses are false and the witnesses need to be confronted with them to
ensure true facts come on record.
20. That the applicant/accused admits that the earlier counsel was engaged by him
off of his own volition, but he had been informed