BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 16/02/2010 CORAM THE HONOURABLE MR.JUSTICE T.SUDANTHIRAM Criminal Appeal (MD)No.1860 of 2002 K.Thakkshinamurthy .. Appellant vs State rep.by The Inspector of Police, SPE/CBI/ACB, Chennai (RC.No.20(A)/99) .. Respondent Prayer Appeal filed under Sections 374 Cr.P.C., to call for the records in C.C.No.3 of 2000 on the file of the learned Principal Special Judge for CBI cases, Madurai, peruse and set aside the judgment dated 27.12.2002 and thereby acquit the appellant. !For Appellant ... Mr.K.Thakshinamurthy Party in Person ^For Respondent ... Mr.S.Rozario Sundar Raj, Special Public Prosecutor (for CBI Cases) :JUDGMENT
The appellant herein is the accused in C.C.No.3 of 2002 on the file of the
Principal Special Judge for CBI cases, Madurai and stands convicted for the
offence under Sections 467, 468, 467 r/w 471, 420 IPC and for the offence
under Sections 13(2) r/w 13(1)(d) of P.C.Act and sentenced as follows:
“i)The accused was sentenced to undergo RI for 5 years and to pay a fine
of Rs.10,000/-, in default to undergo RI for 6 months for the offence under
Section 467 of IPC
ii)The accused was sentenced to undergo RI for 5 years and to pay a fine
of Rs.10,000/-, in default to undergo RI for 6 months for the offence under
Section 468 of IPC
iii)The accused was sentenced to undergo RI for 5 years and to pay a fine
of Rs.10,000/- in default to undergo RI for 6 months for the offence under
Section 467 r/w 471 of IPC.
iv)The accused was sentenced to undergo RI for 5 years and to pay a fine
of Rs.10,000/- in default to undergo RI for 6 months for the offence under
Section 420 of IPC.
v)The accused was sentenced to undergo RI for 5 years and to pay a fine of
Rs.16,00,000/- (Rs.16 lakhs) in default to undergo RI for one year for the
offence under Section 13(2) r/w 13(1)(d) of P.C.Act, 1988″.
Aggrieved over the said conviction and sentence, the appellant herein has
preferred this criminal appeal.
2.The case of the prosecution in brief is as follows:
a)The accused K.Thakkshinamurthy, joined in the State Bank of India at
Arasaradi Branch as Branch Manager on 05.07.1996 on transfer from, Commercial
Tax Office, Madurai. As a Branch Manager, he was the overall in charge of the
Branch and he was the Branch Manager till 06.10.1998.
b)During the relevant period, P.W.10 Clerk/Cashier in the said branch was
looking after TDR seat. On 13.11.1996, he received blank forms bearing
Nos.179601 to 179650 from P.W.9 who was the custodian of the STDR security
forms. The accused approached P.W.10 and asked two STDRs forms saying that it
was to be issued for some V.I.P customers. P.W.10 handed over the STDR blank
forms bearing Nos.179604 and 179605. P.W.10, did not get any acknowledgement
from the accused since the accused was the Branch Manager. P.W.10 also informed
about this to P.W.9, Accountant. P.W.9 noted two instrument numbers received by
the accused in Ex.P.8. Making use of the blank STDR form bearing No.179605, the
accused created a loan for Rs.20,00,000/- in the name of K.Raju and the receipt
also was ante dated as 20.07.1996. Thereafter, in February 1997, the accused
approached P.W.6 who was the then Branch Manager of State Bank of India, Madurai
Kamaraj University Branch and collected a loan application. Two days thereafter,
the accused approached P.W.6 along with filled and signed loan application under
Ex.P.10 and other documents namely demand promissory note/Ex.P.11 duly signed on
the revenue stamp by one K.Raju and one D.P.note delivery letter under Ex.P.12
also signed by K.Raju along with fake STDR Ex.P.3. On the basis of the document,
the accused requested P.W.6 to give a loan of Rs.15 lakhs on the strength of
Ex.P.3, a fake STDR. The accused also told P.W.6 that the depositor was a
contractor and was a good customer and as he was a busy man, he could not come
to the branch. P.W.6 also sanctioned the loan and the loan amount was disbursed
by way of two Demand Drafts one for Rs.9 lakhs and another one for Rs.6 lakhs in
the name of K.Raju which are marked as Exs.P.15 and 16 respectively. P.W.6 had
personally handed over those demand drafts Exs.P.15 and 16 to the accused. When
there was an inspection during 1997, the Inspecting Officer insisted for filing
of the account opening form for the purpose of verification of signature. As it
was requested by P.W.6, the accused gave Ex.P.19, account opening form and
specimen signature card, dated 04.04.1997 and it was attested by the accused.
The accused who brought those two demand drafts Exs.P.15 and 16 to his branch
created another STDR bearing No.179842 for Rs.15 lakhs, dated 26.02.1997 in
favour of K.Raju. The accused also opened a current account in the name of
K.Raju with Current A/c.No.013693. Thereafter, the accused passed Ex.P.4 cheque
for Rs.5 lakhs, dated 27.02.1997 in the name of K.Raju and also passed another
cheque Ex.P.5, dated 28.02.1997 for Rs.6 lakhs in the name of K.Raju.
Subsequently, on 27.03.1997, the STDR bearing No.179842 dated 26.02.1997 under
Ex.P.7 was closed by the accused and the proceeds amounting to Rs.15,07,150/-
was credited to the current account of K.Raju through Ex.P.6/pay in slips.
Subsequently, the amount which was credited to the current account of K.Raju
also was withdrawn.
c)P.W.15, who was working as Assistant Manager in State Bank of India,
M.K.U Branch contacted the Arasaradi Branch Manager, P.W.4, who was the
successor of the accused as Manager in SBI, Arasaradi and asked whether
Ex.P.3/TDR No.179605 was available in their books since their branch had
advanced a loan against the said TDR. Ex.P.3 had matured on 20.07.1998. P.W.4
asked P.W.15 to bring all the relevant documents. On verifying the records found
that no such STDR/Ex.P.3 was issued by Arasaradi Branch. The fraud was detected
and P.W.17 who was the Manager Vigilance in SBI, local Head Office at Chennai
was instructed by the Deputy General Manager to conduct an enquiry and he also
conducted an enquiry and submitted his report Ex.P.31. P.W.17 found so many
irregularities and the fraud committed by the accused.
d)P.W.18, who was working as Inspector in CBI/ACB, Chennai registered a
case in Crime No.21(A)/99 for the offence under Sections 420, 467, 468, 471,
477-A of IPC and under Sections 13(2) r/w 13(1)(d) of P.C Act on 13.07.1999 and
prepared Ex.P.32/FIR. After receiving the case, P.W.18 obtained documents from
the bank and also examined witnesses collected relevant materials. He also
examined the accused after obtaining specimen signature and writings sent those
specimen signatures and writings of the accused to the handwriting expert for
comparison of questioned documents. P.W.16, handwriting expert has given his
opinion under Ex.P.30. The Investigating Officer after obtaining sanction/Ex.P.2
from P.W.1 laid a final report against the accused on 29.12.1999 under Sections
420, 467, 468, 471 and 201 of IPC and under Sections 13(2) read with 13(1)(d) of
Prevention of Corruption Act, 1988.
3.The prosecution, in order to bring home the guilt of the accused, the
prosecution examined P.Ws.1 to 18 and marked Exs.P.1 to 32.
4.The learned trial Judge, with reference to the incriminating materials
adduced by the prosecution, questioned the accused under Section 313 Cr.P.C.,
for which, he pleaded innocence. No defence witness was examined but Exs.D-1 to
D-94 were marked during the cross examination of witnesses.
5.The learned trial Judge, after assessing the materials placed and
considering the arguments advanced on either side, convicted and sentenced the
accused as stated supra.
6.The appellant herein who is confined in prison appeared before this
Court and submitted his arguments as a party-in-person. When this Court
specifically questioned him whether he requires the assistance of any lawyer, he
said that he himself would argue the case since he was thorough with the facts
of this case and he would be in a better position in explaining the documents
before this Court. The appellant apart from making his oral submissions also
filed written arguments. Though there is no specific provision for filing
written arguments in the appeal this Court entertained the written submissions.
7.The learned Special Public Prosecutor also was heard.
8.This Court after hearing the arguments reserved the judgment and perused
all the records carefully. Since this Court felt that any important point in
favour of the accused which may disprove the prosecution case should not go
unnoticed. Though this Court has taken into consideration the oral and written
arguments of the appellant/accused while perusing the records, the relevant
arguments are now dealt with by this Court in this judgment.
9.The appellant submitted that Ex.P.3 was never prepared by him and it is
not in his handwriting and Ex.P.3 was concocted by P.W.6, the Branch Manager of
MKU branch.
ii)The appellant also pointed out that as per Ex.D-1, the show cause
notice, dated 01.03.1999 issued by the Regional Zonal Office, Madurai to the
accused wherein it was mentioned that TDR Nos.179604 and 179605 were issued for
the amount of Rs.10 lakhs each.
iii)The appellant also pointed out certain contradictions from the copy of
the plaint in O.S.No.127 of 2002 on the file of the learned II Additional Sub
Court, Madurai filed by P.W.3.
iv)The appellant also submitted that if the loan was sanctioned at the
instance of the accused by P.W.6, he could have got the signature of the accused
while delivering the demand drafts Exs.P.15 and 16 respectively and there was a
collusion between the Branch Manager of MKU Branch/P.W.6 and the accountant of
Arasaradi Branch P.W.9. The signatures of the accused found on the back side of
the cheques Exs.P.4 and 5 would not be incriminating against the accused since
the initial made by the accused amounts to only attestation which was done for
the genuineness of the signatures and regarding the identification of the payee.
P.W.16, handwriting expert also has not given any opinion that the signature of
K.Raju was forged by the accused and K.Raju is not a fictitious person. The
amount of Rs.5 lakhs and Rs.6 lakhs in Exs.P.4 and 5 were paid only to the
account holder K.Raju and the entry in the cashier’s payment scroll Exs.D-19 and
20 show that the payments are made only to K.Raju.
v)The appellant further submitted that no documentary evidence has been
let in by the prosecution regarding the loss to the MKU Branch and if Ex.P.3 is
forged one, then there would have been loss at Arasaradi Branch but no document
has been filed by the prosecution and the accused cannot be implicated.
vi)The appellant further added that the opinion given by handwriting
expert were not based on sound reasonings and the sanction accorded by P.W.1 was
not proper and the particulars contained in Ex.P.2 are contrary to the facts
alleged by the prosecution.
10.Per contra, the learned Special Public Prosecutor submitted that there
is ample oral and documentary evidence against the accused to show that the
account of K.Raju was handled only by the accused and the said K.Raju never
appeared before the bank or before any of the officials and all the transactions
were made only by the accused. The prosecution also has let in evidence through
Bank Inspecting Officer and P.W.5, Postman, the address of the account holder
K.Raju is false and it is only a fictitious account created by the accused only
for the purpose of committing fraud. Ex.P.3/the fictitious STDR was created by
the accused and P.W.16, the handwriting expert also has given opinion that the
handwriting found in Ex.P.3 is that of the accused. The accused had also signed
in Ex.P.18 letter given from the MKU Branch. Ex.P.19, Account opening form was
also produced only by the accused. The cheque amount of Rs.5 lakhs and Rs.6
lakhs in Exs.P.4 and 5 were given only to the accused. P.W.14, Computer
operator had given evidence to that effect. The oral evidence given by the bank
officials against the accused cannot be rejected since there was no necessity
for them to depose falsely against the accused. The learned Special Public
Prosecutor also submitted that several cases were filed against the accused for
committing bank fraud and the conviction of the accused in C.C.No.1 of 2000 has
been confirmed by this Court in C.A.No.1858 of 2002. The accused is also
convicted by the trial Court for possessing disproportionate assets and no mercy
could be shown to the accused, even with regard to the sentenced imposed on him
by the trial Court.
11.This Court considered the submissions made by the appellant/accused and
the learned Special Public Prosecutor and also perused the entire materials
available on record.
12.The main allegation against the accused is that the accused got two
blank STDR forms from P.W.10 and misusing it created and forged short term
deposit receipt (STDR) for a sum of Rs.20 lakhs which is marked as Ex.P.3 in
this case. With the help of Ex.P.3, the accused by approaching P.W.6, the Branch
Manager of MKU Branch loan was obtained for a sum of Rs.15 lakhs in the name of
K.Raju and getting two demand drafts one for a sum of Rs.9 lakhs and another one
for a sum of Rs.6 lakhs and again coming to his own Arasaradi Branch opened a
fictitious current account in the name of K.Raju with the overdraft facility for
a sum of Rs.11 lakhs. The said STDR/Ex.P.7, dated 26.02.1997 for a sum of
Rs.15,00,000/- was foreclosed on 27.03.1997 and the proceeds were transferred to
the current account of K.Raju and subsequently, the amounts were withdrawn from
the said current account, thereby the accused has obtained undue pecuniary
advantage to the tune of Rs.15 lakhs causing loss to the SBI.
13.Now it is to be seen that what are the oral and documentary evidence
available for the allegation made against the accused. Ex.P.3/STDR for a sum of
Rs.20 lakhs is bogus one since for issuing Ex.P.3 in favour of K.Raju, no amount
was deposited in the bank at Arasaradi Branch.
14.P.W.4, the Branch Manager of the Arasaradi Branch who is the successor
of the accused had specifically stated that as STDR bearing Nos.179600 to 179650
were taken out by the joint custodian of the Arasaradi Branch for use only on
12.11.1996, it was not possible for the branch to issue STDR bearing No.179605
for Rs.20 lakhs on 20.07.1996. He further stated that on 20.07.1996 there was no
entry with regard to the STDR No.179605 being issued to K.Raju and there was no
consideration or cash was deposited in the bank for issuing Ex.P.3. It is
established by the prosecution that Ex.P.3 is a fictitious receipt.
15.P.W.2, who was working as Assistant Accountant/Typist in the Arasaradi
Branch had deposed that the writings in Ex.P.3 are in the handwriting of the
accused and he has put his signature in the manager column specified in Ex.P.3.
The writings in Ex.P.3 marked as Q-39 and sent for comparison with the specimen
writings of the accused. P.W.16, handwriting expert also given opinion that
those writings in Q-39 are similar to the specimen writings of the accused.
Though P.W.16 could not give opinion regarding the signature of K.Raju, on the
back side of Ex.P.3, he had given his definite opinion about the writings in
Ex.P.3. Further, the accused signature is found in the column of Branch Manager.
Therefore, the prosecution established that Ex.P.3 had been issued by the
accused and it had been created by the accused. Ex.P.3 is dated 20.07.1996 but
P.W.10, the Clerk of the Arasaradi Branch had specifically given evidence that
on 13.11.1996, he had given two blank STDR forms to the accused. P.W.10 also
stated who is familiar with the writings of the accused that Ex.P.3 is written
and signed by the accused. There is clear evidence to the extent that blank
STDRs were obtained from P.W.10 on 13.11.1996 and it was ante dated as
20.07.1996 and created falsely by the accused. The said Ex.P.3 also has been
produced by the accused but P.W.6, the Manager of the MKU Branch had deposed
that the accused only produced Ex.P.3 along with loan application. Based on
Ex.P.3, the loan was obtained for a sum of Rs.15 lakhs in the name of K.Raju and
all the relevant forms were only produced by the accused. Though it is
contended by the accused that P.W.6 had colluded with P.W.9 which cannot be
accepted for the reason that in Ex.P.18, lien letter given by P.W.6, the accused
had signed. The writings of the accused “noted the lien in our Branch books” and
the signature of the accused which is marked as Q-41 had been compared by the
handwriting expert with the specimen writings of the accused and opinion has
been given that they are similar. Further, even Ex.P.19 which was subsequently
produced by the accused dated 04.04.1997 also was written only by the accused
and the writings of the name of K.Raju which is marked as Q-42 also had been
compared with the specimen writings of the accused. Even in Ex.P.19, the accused
had signed only in the capacity of Branch Manager of Arasaradi Branch.
16.According to P.W.6, the other documents for getting loan such as
Exs.P.10 to 12 were produced only by the accused. From the evidence of P.W.6 and
also from the documents, it is established by the prosecution that using the
forged document Ex.P.3, the accused had obtained two demand drafts Exs.P.15 and
16 respectively, dated 24.02.1997 in favour of K.Raju. Immediately based on
those two demand drafts Exs.P.15 and 16, STDR for a sum of Rs.15,00,000/- was
issued in favour of K.Raju. Ex.P.17 is the pay in slip for getting the STDR. In
Ex.P.17 the numbers of the two demand drafts Exs.15 and 16 are mentioned. On the
same day, the current account was opened in the name of K.Raju. P.W.11 who was
working as System Administrator in the Arasaradi Branch had deposed that the
account was opened based on the account opening form given by the accused and
the said form was also authorised by the accused and the accused was the
introducer of K.Raju. P.W.11 also stated that the current account with the
overdraft facility of Rs.11.25 lakhs in the name of K.Raju was opened in the
computer system by him and he only filled the pay in slip form of Ex.P.17.
P.W.11 had further stated that the account opening forms are not available and
he could not locate it from the file.
17.According to the prosecution, K.Raju is the fictitious person but it is
denied by the accused. Though according to the prosecution, K.Raju is not
fictitious person, the accused is only the introducer. The address given on
behalf of the said K.Raju is found to be bogus. The postman/P.W.5 had
specifically stated that there was no such person in the said address. P.W.4
also had stated that he had verified and found that the address is bogus. The
handwriting expert has not given any opinion that signature of K.Raju was put by
the accused. The evidence of bank employee witnesses is that the person K.Raju
had never come before the bank officials. Though the accused is introducer of
K.Raju he is unable to state the identity of the said person K.Raju and is
unable to establish the fact that the prosecution has not established the fact.
Though the signature of K.Raju was put by the accused, the prosecution had
established that the documents are forged one and they were used by the accused.
18.Exs.P.4 and 5 are the two cheques which are used for withdrawing the
amount. Both the cheques were passed by the accused and he had attested the
signature of K.Raju on the reverse side of the cheque. P.W.14, who was working
as computer operator had deposed that the cheques were tendered by the accused.
In Exs.P.4 and 5/cheques, the writings are marked as Q29/1 and Q31/1 and these
writings have been compared by the handwriting expert with the specimen writings
of the accused and P.W.16 has given opinion that those writings are similar to
the specimen writings of the accused. The prosecution has established that the
account of K.Raju was opened and operated by the accused.
19.The contention of the accused that Ex.P.3 was never prepared is to be
rejected, in view of the reasons already given by this Court. What is stated in
Ex.D.1 regarding the amount particulars in STDR No.176905, may not be correct.
But that will not affect the case of the prosecution since Ex.P.3 (STDR) has
been marked by the prosecution in which it is mentioned as Rs.20,00,000/-.
Further, the minor contradictions pointed out by the accused in the copy of the
plaint filed by P.W.3 cannot be considered in this case since ample oral as well
as documentary evidence has been let in by the prosecution as already discussed
above.
20.The contention of the accused that the loan was not sanctioned at the
instance of the accused by P.W.6 and it is evident from the fact that P.W.6 did
not get the signature while delivering the demand drafts is not acceptable. As
already stated above, Exs.18 and 19 clearly prove the involvement of the accused
in producing fake Ex.P.3 to P.W.6. Though it is the submission of the accused
that under Exs.P.4 and 5 on the reverse side, the accused put his initial only
for the purpose of attesting the genuineness of the signature of K.Raju, the
writings in Exs.P.4 and 5 had been identified by the witnesses as that of the
writings of the accused and as already stated, the handwriting expert also has
given opinion in support of it. The entries made in Exs.D.19 and 20, the cashier
payment scroll that the payment was made to K.Raju will not affect the case of
the prosecution, as the cheques were produced by the accused. Normally, the name
of the person who signed in the cheque will be mentioned in the cashier payment
scroll.
21.The contention of the accused that the opinion given by the handwriting
expert P.W.16 not based on the sound reasonings, cannot be accepted since P.W.16
along with his opinion Ex.P.30 had elaborately given reasons for forming the
opinion, taking into consideration, manner of formation of letters, nature of
its connection of letters and so many other aspects. Further, apart from the
opinion given by the handwriting expert, the bank employees also given evidence
who were acquainted with the handwritings of the accused.
22.Regarding the sanction/Ex.P.2 given by P.W.1, he had specifically given
evidence that he had fully gone through all the connected materials, relevant
and material records and only after being satisfied that a prima facie case has
been made out against the accused, he had granted sanction. In Ex.P.2, it is
also mentioned by the sanctioning authority that the copies of FIR,
statements of witnesses and documents such as Special Term Deposit Receipts,
loan application, Demand Drafts, Cheques, Special Term Deposit Receipt pay in
slip, Current Account pay in slips, TDR/STDR issued register, Security forms
Issued Register and other relevant documents placed before him. This Court holds
that sanction/Ex.P.2 accorded by P.W.1 is valid.
23.For the above said reasons, the conviction imposed on the accused by
the trial Court is confirmed.
24.With regard to the sentence imposed on the accused by the trial Court
for the offences under Sections 467, 468, 467 r/w 471 IPC 420 IPC are confirmed.
25.With regard to the sentence imposed on the appellant for the offence
under Section 13(2) read with 13(1)(d) of the Prevention of Corruption Act, the
sentence of five years Rigorous Imprisonment is confirmed. But the sentence of
fine amount of Rs.16 lakhs is set aside and instead, he is sentenced to pay a
fine of Rs.10,000/- only and in default to undergo Rigorous imprisonment for six
months.
26.The modification with regard to the fine amount is made by this Court
since it was represented by the appellant/accused that already he is in jail for
more than five years, and he has no money to pay the fine amount since all his
properties have already been attached in the proceedings taken against him for
the disproportionate assets. Only on the said circumstance, this Court felt to
modify the fine amount imposed on the accused. Consequently, the order passed by
the trial Court that from out of the fine amount a sum of Rs.15,00,000/- to be
paid as compensation to the Bank is also set aside.
27.It is brought to the notice of this Court by the appellant that the
judgment in C.C.No.1 of 2000, C.C.No.2 of 2000, and C.C.No.3 of 2000 against
which this appeal is preferred were pronounced on the same day i.e. on
27.12.2002. But the trial Court has not directed the sentence of imprisonment to
run concurrently with the sentence of imprisonment imposed in C.C.No.1 of 2000.
28.This Court now wants to exercise its power under Section 427 Cr.P.C and
the reasons for exercising such power had already been mentioned by this Court
in the judgment pronounced by this Court in Crl.A.No.1859 of 2002. Accordingly,
the sentence of imprisonment imposed in C.C.No.3 of 2000 on the file of the
Principal Special Judge for CBI Cases, Madurai, which are confirmed by this
Court is directed to run concurrently with the sentence of imprisonment imposed
on the accused by the same Judge in C.C.No.1 of 2000.
29.Accordingly, the appeal is dismissed only with the above modification
with regard to the sentence.
sms
To
1.The Principal Special Judge
for CBI cases, Madurai