BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 16/02/2010 CORAM THE HONOURABLE MR.JUSTICE T.SUDANTHIRAM Criminal Appeal (MD)No.1859 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.2 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.2 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 and 201 (iii) 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 one year for the offence
under Section 201 (iii) of IPC.
vi)The accused was sentenced to undergo RI for 5 years and to pay a fine
of Rs.7,00,000/- (Rs.7 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 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)P.W.5, Sridhar was working as Branch Manager in State Bank of India,
M.Kallupatti Branch from 29.06.1995 to 12.08.1998. On 30.10.1997, the accused
went to P.W.5’s house and told him that he would come with a deposit for his
branch on the next day. Accordingly, the next day i.e 31.10.1997, the accused
met P.W.5 at his residence and handed over a Arasaradi Branch Cheque bearing
No.399037, dated 31.10.1997 for Rs.6,00,000/- drawn by K.Raju (fictitious
person) payable at State Bank of India, Arasaradi Branch. The accused told P.W.5
that he would deposit in the name of K.Raju and P.W.5 told that deposits of huge
amount in the name of one person will attract provision of income-tax. Then the
accused told him that three Term Deposit Receipts could be issued in the names
of K.Rajendran, K.Raju and K.Alagumayil for Rs.2,00,000/- each. Accordingly, the
cheque was negotiated by P.W.5. On receiving the cheque, P.W.5 gave the cheque
to his clerk P.W.6 and asked him to prepare three credit vouchers in the names
of three persons for Rs.2,00,000/- each. When P.W.5 asked for account opening
forms, he told him that it would be given at a later date. The concerned pay in
slips and STDRs are placed by the prosecution Exs.P.16 to 21. Though P.W.5
wanted to meet the depositors in person, the accused was giving only evasive
replies and he never gave the account opening forms.
c)P.W.7, Ramachandran, who was the Assistant Accountant in the
M.Kallupatti Branch prepared Ex.P.11 payment advice on the strength of the
cheque and sent it to the State Bank of India, Arasaradi Branch, through courier
service. The accused also acknowledged the payment advice Ex.P.11 and responded
on 07.09.1997. The three STDRs in Exs.P.17, 19 and 21 were for a period of six
months and they all matured on 30.04.1998. On 04.05.1998 all the three STDRs
were purchased by Arasaradi Branch vide Ex.P.22 for Rs.6,24,240/-. All the
three STDRs were received by post by M.Kallupatti Branch on 06.05.1998. The
total value of Rs.6,24,240/- was credited to the current Account No.013693 which
was in the name of K.Raju. The said amount which was credited in the account of
K.Raju subsequently had been withdrawn.
d)The cheque No.348180, dated 29.08.1998 for a sum of Rs.2,00,000/-
bearing signature of K.Raju was passed by the accused. P.W.2, Murugesan
Clerk/Cashier paid a sum of Rs.1.20 lakhs to the accused K.Raju in cash and
Rs.30,000/- was adjusted for demand draft favouring State Bank of India
Supervising Staff Building Society Limited, Chennai. The balance amount of
Rs.50,000/- was adjusted for cash deposit voucher favouring the accused for his
current account No.01090/094699 and on the back side of the cheque, details are
mentioned. Another cheque No.398060, dated 30.06.1997 for Rs.2,00,000/- bearing
the signature of K.Raju was also passed by the accused. Out of Rs.2,00,000/-,
Rs.40,000/- was paid by P.W.2 to the accused in cash and the balance amount of
Rs.1,60,000/- was adjusted for cash deposit voucher for current
A/c.No.01090/040267 of R.Murugaperuman. The details have been mentioned at the
back side of the concerned cheque under Ex.P.6. Another cheque bearing
No.398062, dated 03.07.1997 for Rs.5,00,000/- bearing signature of K.Raju was
passed by the accused. Out of the said amount, P.W.2 paid a cash amount of
Rs.2,28,500/- to the accused and the remaining amount of Rs.2,21,500/- was
adjusted towards demand draft voucher favouring S.Chandra for which the
applicant was the accused. The cheque is Ex.P.8 and on the back side of Ex.P.8,
the accused had acknowledged the receipt of the amount by putting his initial.
e)According to P.W.3, the Branch Manager, who took charge from 07.10.1998,
the cheque No.399037, dated 31.10.1997 for Rs.6,00,000/- was purchased by State
Bank of India, M.Kallupatti Branch purchased on 31.10.1997 in TDR Nos.774770,
774771 and 774772 along with schedule of payment advice under Ex.P.11. In
Ex.P.11, there is a noting that the cheque in question was paid on 07.11.1997 at
Arasaradi Branch duly signed by the Branch Manager but in the current account of
K.Raju on 07.11.1997, there was no transaction at all. P.W.3 noticed the
irregularities about the three STDRs purchased by Arasaradi Branch on
04.05.1998, the total proceeds amount to Rs.6,24,240/- was credited only in the
current account of K.Raju. The amounts in the STDRs account of K.Alagumayil and
K.Rajendran were also credited to the current account of K.Raju which is highly
irregular. P.W.3 also made efforts to contact K.Raju, K.Alagumayil and
K.Rajendran with the addresses available in the branch. Though, he personally
went to the address found, the addresses were bogus. None of these three persons
have come for the operation of the transaction of the business after P.W.3 took
charge of the branch and none of the staff members could also identify or
remember about K.Raju, K.Rajendran and K.Alagumayil. According to the staff
members, the account of K.Raju was operated only by the accused.
f)P.W.4, Postman, attached to K.Pudur Post Office stated that in K.Pudur
Manmalaimedu area there are three houses with Door No.50 and no person by name
K.Raju was residing at any of the houses bearing Door No.50 in Manmamalimedu
area in K.Pudur.
g)P.W.9, who is the Manager of the Head Office at Chennai was instructed
by DGM, Vigilance to conduct an investigation regarding the fraud committed at
Arasaradi Branch. As such, he conducted investigation and submitted a report to
his superior on 28.11.2008. Ex.P.28 is the report.
h)P.W.10, who is the Inspector in SPE/CBI/ACB registered a case in
R.C.No.20(A)/1999. Ex.P.29 is the First Information Report and he took up
investigation and collected documents and also examined witnesses and obtained
specimen signatures and handwritings from the accused for comparison.
Thereafter, he sent those specimen signatures and handwritings along with the
documents in question to the Handwriting Expert P.W.8 for comparison and
opinion. Ex.P.27 is the opinion given by P.W.8. P.W.10, after completing the
investigation by placing the papers to P.W.1, the General Manager of the State
Bank of India, Chennai Circle, who is the competent authority to appoint,
promote and to remove the officers of Scale II in SBI obtained his sanction
under Ex.P.2 and filed a final report 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 10 and marked Exs.P.1 to 29.
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-39 were marked during the cross examination of witnesses. The accused also
filed a petition for framing fresh charges as it was declined by the trial
Court, the accused took up the matter to this High Court and an order was passed
to frame fresh charges. Then, again fresh charges were framed and the accused
was questioned and he denied all the charges. The accused was permitted to
cross examine the witnesses further and as such, P.Ws.2, 3, 4, 5 and 8 to 10
were recalled and they were cross examined by the accused and during such cross
examination, Exs.D.40 to D-63 were marked by the defence.
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 the main charge against the accused is that
he purchased a bogus cheque bearing No.399037, dated 31.10.1997 for
Rs.6,00,000/- related to the current account of K.Raju to the Manager of the
State Bank of India, M.Kallupatti Branch and on the basis of the cheque obtained
3 STDRs each for a value of Rs.2,00,000/-. But the cheque which is said to be
bogus has not been produced before the Court by the prosecution to establish
that bogus cheque was prepared by the accused. The Investigating Officer has not
even seized the cheque and it cuts the root of the prosecution case. As per
Exs.D-9 and 28 which are marked in another case in C.C.No.3 of 2000 against
which Crl.A.No.1860 of 2002 is also pending, to establish the fact that the
cheque book with the cheque leaves 3990262, 399050 was issued to the account
holder K.Raju. Ex.P.11 which is marked by the prosecution as a payment advice
issued on 7.11.1997 is only an acknowledgement advice and it is not a payment
advice as projected by the prosecution. The three STDRs and pay in slips were
prepared by P.W.6 and for preparation of those STDRs when P.W.6 insisted his
Manager P.W.5, Sridhar for filing account opening forms, he was instructed to do
as advised by the Manager. The names of K.Rajendran, K.Raju, and K.Alagumayil on
which the three STDRs stand, were furnished to P.W.6 by P.W.5. Therefore, the
accused is not liable for preparing Exs.P.16 to 21. The 3 STDRs for a total
value of Rs.6,24,240/- were purchased at Arasaradi Branch on 04.05.1998. But in
Ex.P.22, the Demand Draft purchased schedule one Ulaganathan who was the
Assistant Manager of the Arasaradi Branch had signed in that. The said
Ulaganathan has not been examined by the prosecution and the non examination of
the said Ulaganathan leads to show that the prosecution has suppressed the
important facts. Exs.P.3, 6 and 8, the cheques which are used for withdrawal of
the amount from the account of K.Raju are only xerox copies and original
instruments have not been filed. On the reverse side of Exs.P.3, 6 and 8 are
done in the usual course for the genuineness of the signature and also for the
identification of the payee. The claim of the prosecution that K.Raju is only a
fictitious person is false since the customer K.Raju had many transactions in
the bank and Exs.D.15, 31, 35, 43 to 61 established that the customer K.Raju had
several transactions which were passed and handled by the officials other than
the accused. Further, P.W.8 Handwriting Expert has not given any opinion for the
signature of K.Raju found on the documents which were said to be forged by the
accused. If the account opening form of K.Raju has been produced by the
prosecution that would have established that K.Raju is not a fictitious person
and on the whole, the prosecution would become unacceptable and therefore, the
prosecution has deliberately suppressed the account opening form of K.Raju. The
account opening form of K.Raju was very much available under the custody of
P.W.3 and Ex.D-42 and the account opening form was verified by the accused on
05.08.2000. The appellant further submitted that there is no evidence to show
that the accused was personally benefited and the payments are made only to
K.Raju and he only signed in the relevant documents.
10.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 and all the bank officials acted as per the instruction of the
accused and believed the words of the accused as he was representing K.Raju. The
prosecution also has let in evidence through P.W.3 and P.W.4, 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. The
cheque bearing No.399037, dated 31.10.1997 could not be seized by the
Investigating Officer and the accused was specifically charged for that under
Section 201 IPC and he has also been convicted by the trial Court under the said
specific charge. According to the evidence given by the witness P.W.2, the
withdrawal amounts were given only to the accused. The oral evidence given by
the bank officials against the accused cannot be rejected since there was no
necessity to them to depose falsely against the accused. The learned Special
Public Prosecutor 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.
11.The main allegation against the accused is that the accused operated
the account in the name of K.Raju fictitious person on 31.01.1997. The accused
produced a forgery cheque before the Branch Manager of M.Kallupatti and on the
basis of the said cheque induced P.W.5 to issue three short term deposit
receipts (STDRs) each for Rs.2,00,000/- in the fictitious names of K.Raju,
K.Rajendran and K.Alagumayil. When the concerned cheque was sent to the
Arasaradi Branch, the accused issued a fraudulent payment advice to the
M.Kallupatti Branch without debiting the amount in the relevant current account
of K.Raju. Subsequently, three STDRs were matured and the amount was credited to
the current account in the name of K.Raju and subsequently, the entire amount
had been withdrawn by the accused by using the cheques of K.Raju. It is also
alleged that the accused had caused disappearance of the concerned cheque
No.399037, dated 31.10.1997.
12.In support of the above allegation against the accused, the oral
evidence available against the accused is to be seen first. P.W.5, who is the
Branch Manager of M.Kallupatti Branch had deposed that the accused met at his
residence on 31.01.1997 and gave concerned cheque for Rs.6,00,000/- drawn by
K.Raju payable at State Bank of India, Arasaradi Branch, the accused wanted
three STDRs in the names of K.Raju, K.Rajendran and K.Alagumayil for
Rs.2,00,000/- each. Though P.W.5 wanted to meet the depositors, the accused was
giving only evasive replies without showing the depositors. Without account
opening forms and without specimen signature card and without introducer, the
accounts were opened and STDRs were issued by P.W.5 only at the request of the
accused. It was contended by the appellant that the three STDRs were prepared
by P.W.6 as per the direction of P.W.5 and P.W.6 has not implicated the accused
and as such, P.W.5 alone is responsible. This argument will not negative the
evidence given by P.W.5 since the cheque which was received by P.W.5 from the
accused was sent to the Arasaradi Branch for realisation through professional
courier vide Ex.P.13 and the acknowledgement for delivery of that cover was
received vide Ex.P.14. P.W.5 received Ex.P.11 payment advice cum
acknowledgement, dated 07.11.1997 which was duly signed by the accused. If the
accused had no part to play, he need not have signed in Ex.P.11. According to
the accused Ex.P.11 is not the payment advice and it is only an acknowledgement.
On perusal of Ex.P.11, it is mentioned that ‘demand drafts (cheques on branch)
purchased payment return advice’. Whether Ex.P.11 is payment return advice or it
is an acknowledgement, the fact remains that it has been signed by the accused
but the amount of Rs.6,00,000/- was not debited from the current account of
K.Raju. In the said circumstance, being the oral evidence given by P.W.5 that it
was only the accused who personally presented the cheque to P.W.5. P.W.5, also
denied the suggestion of the accused that he never came and instructed P.W.5.
This Court does not find any reason to reject the oral evidence given by P.W.5.
13.After three STDRs have matured, they were purchased at Arasaradi Branch
and the proceeds amounting to Rs.6,24,240/- was credited to the current account
of K.Raju. It is the evidence of P.W.3, the Branch Manager of Arasaradi Branch,
State Bank of India, who took charge from 07.10.1998 had stated that the amounts
in STDRs accounts of Shri.K.Alagumayil and Shri.K.Rajendran were credited to
Shri.K.Raju’s current account which is highly irregular because STDR is merely a
receipt and is not a negotiable instrument. He further deposed that even if the
customer insists that the proceeds of term deposit to be transferred to third
party bank should not do because of the non transferable nature of the receipt.
14.It is submitted by the appellant that in Ex.P.22 only Ulaganathan,
Assistant Manager had signed in that and he only is responsible for purchasing
the three STDRs and to credit the proceeds in the K.Raju’s current account. The
said Ulaganathan also has not been examined by the prosecution. Of course, the
prosecution should have examined Ulaganathan who has signed in Ex.P.22. Still
the fact remains that the proceeds of all the three STDRs were deposited only to
the current account of K.Raju. Therefore, the question is whether the amount
deposited in the K.Raju’s current account was withdrawn by the accused.
15.Three cheques signed by K.Raju were used for withdrawing the said
amount. The evidence of P.W.2, Cashier is that the cheques were passed by the
accused. The amounts were given not to the customer but only to the accused. It
is the evidence of P.W.2 that normally, the amounts were given across the
counter but the accused insisted him to give the amount to him saying that
valuable customer do not come to the bank and the bank is to serve at the door
steps of such customer. P.W.2 also stated that he had not seen K.Raju at any
point of time during his tenure at Arasaradi Branch. As per the oral evidence of
P.W.2, it was only the accused who acted on behalf of K.Raju and withdrawn the
amounts from the account of K.Raju.
16.The oral evidence of P.Ws.2 and 5 leads to show that the accused had
acted on behalf of K.Raju, the account holder.
17.Now it is to be further seen whether any documentary evidence is
available against the accused. P.W.3, Branch Manager, State Bank of India had
stated that the cheque for concerned cheque for Rs.6,00,000/- was sent from
M.Kallupatti Branch to Arasaradi Branch. In Ex.P.11 there is a noting that
cheque in question was paid on 07.11.1997 at Arasaradi Branch duly signed by the
Branch Manager. But as per the ledger extract of current account of K.Raju,
Ex.P.15 on 07.11.1997 there was no transaction at all and the amount of
Rs.6,00,000/- was not debited from the account of K.Raju. Ex.P.11, is an
important document which stands against the accused and if the accused acted
bonafide, he could not have acknowledged Ex.P.11.
18.Further, the proceeds of 3 STDRs, were deposited in the account of
K.Raju and the amounts were withdrawn through three cheques signed by K.Raju. As
already stated, P.W.2, Cashier has given evidence that the cheques were
presented after being passed by the accused himself and the amounts were
withdrawn by the accused.
19.Honouring the cheque No.348180, dated 29.08.1998 for Rs.2,00,000/-, a
sum of Rs.1,20,000/- was paid to the accused in cash and a sum of Rs.30,000/-
was adjusted for demand draft favouring State Bank of India Supervising Staff
Building Society Limited, Chennai. The balance amount of Rs.50,000/- was
adjusted for cash deposit voucher favouring the accused for his current account
No.01090/094699 and these details are mentioned on the reverse side of the
cheque/Ex.P.3. The demand Draft application which was made by the accused for
Rs.30,000/- is Ex.P.4. The cash voucher for depositing Rs.50,000/- is Ex.P.5.
The documents Exs.P.4 and 5 are not denied by the accused and they could not be
denied also. As per Ex.P.4, the application was made by the accused himself for
getting a demand draft for Rs.30,000/-. For the said amount of Rs.30,000/-, the
accused did not pay any cash. Similarly, for depositing a sum of RS.50,000/- in
the account of the accused, the accused had not paid any cash. As both the
amounts in Exs.P.4 and 5 were adjusted from the amount of Ex.P.3, which was said
to be given to the K.Raju, Exs.P.4 and 5 are clinching documentary materials
available against the accused which undoubtedly prove that the cheque amount was
not given to the account holder K.Raju and the amounts were adjusted only in
favour of the accused. In such a case, the remaining amount of Rs.1,20,000/-
cash was given to the accused also should be accepted.
20.Similarly, another cheque No.398060, dated 30.06.1997 for Rs.2,00,000/-
bearing the signature of K.Raju was also passed by the accused. Out of
Rs.2,00,000/-, Rs.40,000/- was paid by P.W.2 to the accused in cash and the
balance amount of Rs.1,60,000/- was adjusted for cash deposit voucher for
current A/c.No.01090/040267 of R.Murugaperumal. The details have been mentioned
at the back side of the concerned cheque under Ex.P.6.
21.In yet another cheque bearing No.398062, dated 03.07.1997 for
Rs.5,00,000/- bearing the signature of K.Raju was passed by the accused. Out of
the said amount, P.W.2, paid a cash amount of Rs.2,28,500/- to the accused and
the remaining amount of Rs.2,21,500/- was adjusted towards demand draft voucher
favouring one S.Chandra. The cheque is Ex.P.8 and on the back side of Ex.P.8,
the accused had acknowledged the receipt of the amount by putting his initial.
Ex.P.9 is the demand draft voucher for getting the demand draft in the name of
S.Chandra. The accused had also signed the Ex.P.9. Ex.P.10 is the another
adjustment voucher for a sum of Rs.50,000/- favouring Sri.Raji
Venkatasubramaniam. The signature of the accused in Ex.P.9 has not been denied
and it is also admitted by the accused that for getting draft in the name of
S.Chandra, cash was not paid by the accused.
22.P.W.2 also noted all these adjustments on the reverse side of the
cheques Exs.P.9 and 10 which are also clinching documentary evidence against the
accused showing that the amounts of the cheque in respect of K.Raju was received
only by the accused and Exs.P.9 and 10 were also signed by the accused.
Therefore, the documents Exs.P.3 to 10 prove that the accused was beneficiary.
23.In view of the above said documentary evidence, this Court has no
hesitation for coming to the conclusion that the accused has operated the
account of K.Raju and he had acted on behalf of K.Raju, account holder and it
was only he who produced the cheques on behalf of the K.Raju and it was he who
had withdrawn the amount on behalf of K.Raju.
24.Of course, it is contended by the appellant that K.Raju is not a
fictitious person and there are several accounts in his name and the signature
of K.Raju is not put by the accused and handwriting expert also has not given
opinion that K.Raju signature was put by the accused. It is the evidence of
P.W.3 that the address given by K.Raju in the account, was bogus, on
verification, the address found to be false in support of that postman also
examined as P.W.4. This Court also on perusing the documents finds that the
signature of K.Raju appears to be signed by one and the same person. Somebody
signed in the name of K.Raju in all the documents and somebody acted as K.Raju.
But the said person K.Raju had never come before the bank officials and no one
had seen the named person K.Raju. Of course, it is contended by the appellant
that he K.Raju, the account holder is existing but the accused is unable to
state the identity of the said person K.Raju and he is unable to establish the
said fact. According to the accused, the account opening form of K.Raju has been
suppressed by the prosecution. It appears that some of the vital documents
including the concerned cheque in this case not available to the Investigating
Officer. Though the accused claims that he had seen the account opening form
while perusing the records, now admittedly the account opening form has not been
produced before this Court. This Court does not want to go into the question,
for disappearance of the cheque and also for the account opening form, whether
the accused is responsible or not.
25.The non production of the account opening form of K.Raju does not
affect the prosecution case in view of the fact that the other ample evidence
being available against the accused. Admittedly, the accused had seen the
account holder K.Raju and according to the accused K.Raju is a valuable customer
but the accused is unable to give any particulars regarding K.Raju. May be that
one person in order to help the accused could have signed as K.Raju, in all the
documents, though the accused had not personally used his handwriting, but
those forged documents have been used by the accused to commit the fraud.
26.In view of the above discussion, this Court is of the opinion that the
accused could not be convicted directly for committing the offence of forgery.
But the conviction for using the forged documents could be confirmed. This
conviction for committing the offence for cheating also could be confirmed.
Being public servant, the offence committed by the accused under the provisions
of Prevention of Corruption Act also to be confirmed.
27.Though the Cheque No.399037, dated 31.10.1997 is missing and not
available to the prosecution agency, there is no material directly to show that
it was only the accused who was responsible for causing disappearance of the
said important document. As stated by the appellant that though the account
opening form of K.Raju had been seen by the accused at the time of inspection,
not produced by the prosecution and the prosecution is not able to explain
whether those documents are available or disappeared and in such condition, the
accused cannot be held liable under Section 201 of IPC for causing disappearance
of the said cheque.
28.In the result, the conviction and sentence imposed on the accused for
the offences under Sections 467, 468 IPC and 201 IPC are set aside. The
conviction imposed on the accused for the offences under Sections 467 read with
471 and 420 IPC and 13 (2) read with 13(1)(d) of the Prevention of Corruption
Act are confirmed.
29.With regard to the sentence imposed by the trial Court for the offences
under Sections 467 read with 471 IPC and 420 IPC, they are confirmed.
30.With regard to the sentence for the offence under Section 13 (2) read
with 13(1)(d) of the Prevention of Corruption Act, the sentence of five years RI
confirmed. But the sentence of fine amount of Rs.7,00,000/- is set aside and
instead, he is sentenced to pay a fine of Rs.10,000/- only and in default to
undergo RI for six months.
31.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.6,00,000/- to be
paid as compensation to the branch is also set aside.
32.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-(against which this appeal is
preferred) and C.C.No.3 of 2000 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.
33.Section 427 Cr.P.C is as follows:
“427.Sentence on offender already sentenced for another offence:-
1)When a person already undergoing a sentence of imprisonment is sentenced
on a subsequent conviction to imprisonment or imprisonment for life, such
imprisonment or imprisonment for life shall commence at the expiration of the
imprisonment to which he has been previously sentenced, unless the Court directs
that the subsequent sentence shall run concurrently with such previous sentence:
Provided that where a person who has been sentenced to imprisonment by an
order under Section 122 in default of furnishing security is, whilst undergoing
such sentence, sentenced to imprisonment for an offence committed prior to the
making of such order, the latter sentence shall commence immediately.
2)When a person already undergoing a sentence of imprisonment for life is
sentenced on a subsequent conviction to imprisonment for a term or imprisonment
for life, the subsequent sentence shall run concurrently with such previous
sentence”.
34.When a person already undergoing a sentence of imprisonment is
sentenced on a subsequent conviction to such imprisonment, shall commence at the
expiration of the imprisonment to which he has been previously sentenced, unless
the Court directs that the subsequent sentence, shall run concurrently with such
previous sentence.
35.The accused/appellant was sentenced in three cases on the same day one
after the other and in such circumstance, the Court was competent to exercise
the discretion in directing the subsequent sentence (in the case decided
subsequently) that the sentence shall run concurrently with the earlier sentence
in the case earlier decided. In the present case, the learned Judge had not
exercised his discretion.
36.Of course, the learned Special Public Prosecutor had also submitted
that no leniency should be shown to the appellant/accused and the sentence
should not be made to run concurrently.
37.It is observed by the Bombay High Court in Sadashiv Chhokha Sable Vs.
State of Maharashtra (1993 Crl.L.J 1469) as follows:
“6.We must notice that the learned Public Prosecutor for the State had
contended that Section 427 Cr.P.C is not attracted in the instant matter because
the petitioner was not “undergoing a sentence of imprisonment” as contemplated
under that provision, when subsequent sentenced was awarded. According to him,
unless the offender is physically in jail to suffer the sentence of imprisonment
at the time of subsequent sentence, Section 427(1) cannot be pressed into
service. In our view, such an approach to the provision would not be object
oriented. Normal principle is that sentences should take effect immediately on
conviction. Criminal Procedure Code provides that where several sentences are
passed, such sentences should run one after the other i.e. consecutively unless
the Court directs otherwise i.e. concurrently. A person sentenced to
imprisonment must, for the purpose of Section 427, be deemed to be undergoing
that sentence from the very moment the sentence is passed. The accused may be on
bail or in custody in the earlier case at the time of passing of the subsequent
sentence. There cannot be legislative intention to deny the benefit of the
provision even in a deserving case by virtue of the only fact that the convict
is on bail or in custody or could not be taken within the portals of prison for
some genuine reason. Literal construction on the terminology “undergoing a
sentence of imprisonment” as suggested on behalf of the State would lead to
absurd results specially where two separate sentences are awarded one after the
other on one day in two different trials. Either the learned Judge would not
exercise the discretion only because in the earlier case he had not gone inside
the jail by that time or he will have to actually send the convict inside the
jail for some time, and call him back immediately to pronounce judgment in the
second case. We do not think such absurd and farcical situation was intended by
the legislature”.
38.This Court now wants to exercise its power under Section 427 Cr.P.C and
accordingly, the sentence of imprisonment imposed in C.C.No.2 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.
39.Accordingly, the appeal is partly allowed.
sms
To
1.The Principal Special Judge
for CBI cases, Madurai.