BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 08/04/2009 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM Crl.A.No.637 of 1997 & Crl.A.No.645 of 1997 1.A.Murali . . . Appellant in Crl.A.No.637/1997 /4th accused 1.S.N.Murugesan 2.S.N.Nagarajan 3.S.Kanagaraj . . . Appellants in Crl.A.No.645/1997 /Accused 1 to 3 Vs. State represented by the Inspector of Police, SPE CBI, Madras. (R.C.No.65(A)/90) . . . Respondent in
both the appeal
/Complainant
Criminal appeals are filed under Section 374(3) of Cr.P.C., against the
judgment dated 19.08.1997 passed in Calendar Case No.2 of 1995 by the Special
Court for CBI cases, Madurai.
!For appellant in
Crl.A.No.637/1997 … Mrs.Gita Asokan
For appellants in
Crl.A.No.645/1997 … Mr.Chandrasekaran
^For respondent in
both the appeal … Mr.S.Rozario Sundarraj,
Spl. Public Prosecutor,
(for CBI cases)
:COMMON JUDGMENT
Challenge in this criminal appeals is to the conviction and sentence
passed in Calendar Case No.2 of 1995 by the Special Court for CBI cases,
Madurai.
2.The nubble of the prosecution case is that the first accused viz.,
Murugesan has acted as an agent of National Insurance Company Limited during the
years 1988-1990 and the second accused viz., Nagarajan is his brother and the
third and fourth accused viz., Dr.S.Kanagaraj and Dr.A.Murali have acted as
Veterinary Doctors, attached to the said Insurance Company and all the accused
have conspired together so as to make false post-mortem certificates
as if the cattle of Murugan, Marimuthu, Ramasamy, Mookaiyan, Rajendran,
Paraman, Muthappan and Nagarajan have expired. In pursuance of their
conspiracy, the first accused has made false claims to the tune of Rs.39,550/-.
The third accused has given false post-mortem certificates. The fourth accused
has also given false post-mortem certificates. Under the said circumstances, the
accused 1 to 4 are said to have committed offence under Section 120-B of the
Indian Penal Code, the first accused is said to have committed offence under
Sections 420 of the Indian Penal Code, the third accused is said to have
committed offence under Sections 468, 468 & 471 of the Indian Penal Code, the
fourth accused is said to have committed offence under Sections 468, 468 & 471
of the Indian Penal Code, the first accused is also said to have committed
offences under Sections 468, 468 & 471 of the Indian Penal Code and the second
accused is said to have committed offence under Sections 13(1)(d) read with
13(2) of the Prevention of Corruption Act, 1988.
3.The investigating agency has conducted investigation and after
completing the same, laid a final report on the file of the trial Court. The
trial Court, after pondering the alleged culpability of the accused, has framed
first charge against the accused 1 to 4 under Section 120-B of the Indian Penal
Code, second charge against the first accused under Section 420 of the Indian
Penal Code, third charge against the third accused under Section 420 of the
Indian Penal Code, fourth charge against the third accused under Sections 468 &
471 of the Indian Penal Code, fifth charge against the fourth accused under
Section 468 of the Indian Penal Code, sixth charge against the fourth accused
under Section 468 & 471 of the Indian Penal Code, seventh charge against the
first accused under Section 468 & 471 of the Indian Penal Code and eighth charge
against the second accused under Sections 13(1)(d) read with 13(2) of the
Prevention of Corruption Act, 1988 and the same have been read over and
explained to them and all the accused have rejected the respective
charges framed against them and claimed to be tried.
4.On the side of the prosecution, PWs.1 to 16 have been examined and
Exs.P1 to P36 have been marked.
5.When the accused have been questioned under Section 313 of the Code of
Criminal Procedure, as respects the incriminating circumstance appearing in
evidence against them, they denied their complicity in the crimes. No oral
evidence has been adduced on the side of the accused. However, Ex.D1 has been
marked on the side of the accused.
6.The trial Court, after pondering the evidence available on record, has
found the accused 1 to 4 guilty under Section 120-B of the Indian Penal Code and
imposed a fine of Rs.100/- upon each of them with default clause. The first
accused has been found guilty under Section 420 (3 counts) of the Indian Penal
Code and sentenced to undergo one year rigorous imprisonment and also imposed a
fine of Rs.5,000/- upon each count with default clause. He has also been found
guilty under Sections 468 & 471(3 counts) of the Indian Penal Code and sentenced
to undergo four months rigorous imprisonment and also imposed a fine of Rs.500/-
upon each count with default clause. The second accused has been found guilty
under Section 420 of the Indian Penal Code and sentenced to undergo one year
rigorous imprisonment and also imposed a fine of Rs.5,000/- with default clause.
The third accused has been found guilty under Section 468 (1 count) of the
Indian Penal Code and sentenced to undergo four months rigorous imprisonment and
also imposed a fine of Rs.500/- with default clause. He has also been found
guilty under Section 13(1)(d) read with 13(2) of the Prevention of Corruption
Act, 1988 and sentenced to undergo one year rigorous imprisonment and also
imposed a fine of Rs.5,000/- with default clause. The fourth accused has been
found guilty under Section 468(2 counts) of the Indian Penal Code and sentenced
to undergo four months rigorous imprisonment and also imposed a fine of Rs.500/-
upon each count with default clause. He has also been found guilty under
Section 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 and
sentenced to undergo one year rigorous imprisonment and also imposed a fine of
Rs.10,000/- with default clause.
7.Against the conviction and sentence passed by the trial Court, the
accused 1 to 3 have filed Criminal Appeal No.645 of 1997 and the fourth accused
has filed Criminal Appeal No.637 of 1997 on the file of this Court as
appellants. Since common questions of law and facts are involved in both the
appeals, common judgment is pronounced.
8.The sum and substance of the case of the prosecution is that all the
accused have entered into conspiracy so as to cheat the National Insurance
Limited during the period of 1988-1990 and in pursuance of their conspiracy,
they created false post-mortem certificates as if cattle of the persons namely
Murugan, Marimuthu, Ramasamy, Mookaiyan, Rajendran, Paraman, Muthappan and
Nagarajan have passed away and subsequently, the first accused has received a
sum of Rs.39,550/-.
9.The trial Court has framed as many as eight charges against the accused
and they have made candid denial. Since the accused have made candid denial
with regard to the respective charges framed against them, it is for the
prosecution to prove each and every charge to the satisfaction of the Court.
The main charges framed against the accused are under Sections 420, 468 & 471 of
the Indian Penal Code.
10.At this juncture, it would be more useful to look into the provision of
the following relevant Sections;
(a) Section 420 of the Indian Penal Code reads as follows;
“Cheating and dishonestly inducing delivery of property.- Whoever cheats
and thereby dishonestly induces the person deceived to deliver any property to
any person, or to make, alter or destroy the whole or any part of a valuable
security, or anything which is signed or sealed, and which is capable of being
converted into a valuable security, shall be punished with imprisonment of
either description for a term which may extend to seven years, and shall also be
liable to fine.”
(b) Section 468 of the Indian Penal Code reads as follows;
“Forgery for purpose of cheating.- Whoever commits forgery, intending that
the document or electronic record forged shall be used for the purpose of
cheating, shall be punished with imprisonment of either description a term which
may extend to seven years, and shall also be liable to fine.”
(c) Section 471 of the Indian Penal Code reads as follows;
“Using as genuine a forged document or electronic record.- Whoever
fraudulently or dishonestly uses as genuine any document or electronic record
which he knows or has reason to believe to be a forged document or electronic
record, shall be punished in the same manner as if he had forged such document
or electronic record.”
11.One Rajendran has been examined as PW1. He has stated in his evidence
that after perusing all the relevant records, he has given sanction order so as
to launch the prosecution against the accused 3 & 4 and the same have been
marked as Exs.P1 & P2.
12.The Claim Manager of National Insurance Company Limited viz.,
Selvarajan has been examined as PW3. He has stated in his evidence about the
procedure for appointment of an agent and the procedure for insuring an animal.
Further he has stated that insurance can be made only after ascertaining the
given particulars are genuine and further he has deposed the relevant procedure
of getting compensation.
13.The then Administrative Officer of National Insurance Company Limited
viz., S.Srinivasan has been examined as PW4. He has stated in his evidence that
on 24.02.1989 one Assistant Branch Manager by name Komathinayagam has appointed
the first accused as an agent of the National Insurance Company Limited and the
appointment order has been marked as Ex.P5. Further he speaks about the claims
made in the names of Murugan, Marimuthu, Ramasamy, Mookaiyan, Rajendran,
Paraman, Muthappan and Nagarajan and the Insurance Policies, Claim Forms and
Disbursement Order have been respectively marked as Exs.P6 to P13. Further he
has stated in his evidence that only after ascertaining the given particulars
are genuine, disbursements of money have been made due to death of cattle.
14.In the present case, the prosecution has been launched only on the
basis of the role alleged to have been played by one Sundaram, who has been
examined as PW2 on the side of the prosecution. He would say in his evidence
that he is a septuagenarian and a freedom fighter and he knows Rajendran who has
been examined as PW5 and in the year 1989, he met him and told that he received
a cheque from National Insurance Company Limited as if his cow has expired.
Further he stated that he has no connection whatsoever with the cheque of the
National Insurance Company Limited. On the basis of his representation, he
(PW2) has written a post-card to the National Insurance Company Limited and the
same has been marked as Ex.P3 and subsequently he has given a complaint which
has been marked as Ex.P4. During the course of cross-examination, he would say
in his evidence that a strong motive has been in existence between the said
Rajendran and first accused, and after knowing the fact that the said Rajendran
has acted with oblique and sinister motive, he has given a letter (Ex.P4) to the
National Insurance Company Limited to the effect not to take action on the basis
of his complaint. Even though PW2 has requested the National Insurance Company
Limited not to take any action on the basis of his complaint, the prosecution
has conducted investigation and after completing the same, laid a final report
on the file of the trial Court.
15.The learned counsel appearing for the appellants/accused have advanced
their identical arguments to the effect that in the instance case, the first
accused has acted as an agent of National Insurance Company Limited and only on
the basis of death of some animals which have been insured with the National
Insurance Company Limited, compensations have been claimed and the same have
been given to the claimants and PW5 viz., Rajendran has had strong motive
against the first accused and in order to entangle him in problems, he has given
a false complaint against all the accused and the accused 3 & 4 have genuinely
conducted post-mortem and given necessary post-mortem certificates and the
Insurance Officials, after knowing its genuineness, have ordered compensation
and further the prosecution has failed to prove the charges framed against all
the accused by way of examining relevant witnesses and the trial Court without
considering the infirmities found on the side of the prosecution, has
erroneously invited the conviction and sentence and therefore, the same are
liable to be interfered with.
16.Per contra, the learned Special Public Prosecutor for CBI cases, has
also vehemently contended that in the instant case, Exs.P6 to P13 have clearly
spoken about the offences alleged to have been committed by all the accused and
the trial Court, after contemplating all the evidence available on record, has
rightly convicted and sentenced them to undergo imprisonment under each Section
mentioned in the charges and therefore, the conviction and sentence passed by
the trial Court are perfectly correct and the same need no interference.
17.It has already been pointed out that PW3 viz., Selvarajan has clearly
spoken about the procedure for insuring an animal and also procedure for giving
compensation. The sum and substance of the evidence given by PW3 is that only
after knowing the existence of a particular animal, the same will be insured and
also after knowing fully well about the death of an animal, compensation will be
given. PW4 viz., Srinivasan has also given equal evidence to the effect that
only after knowing the claims made in Exs.P6 to P13 are genuine, disbursement of
amounts have been taken place.
18.In fact, it is not the case of the prosecution that without existence
of animals in question, respective insurance claims have been made. The
specific case of the prosecution is that all the accused in order to enrich
themselves have entered into conspiracy to create fake post-mortem certificates
in respect of animals belonged to Murugan, Marimuthu, Ramasamy, Mookaiyan,
Rajendran, Paraman, Muthappan and Nagarajan.
19.Ex.P6 is related to Mookaiyan (PW14) and the concerned post-mortem
certificate has been given by the fourth accused and the compensation amount has
been received by the first accused. Ex.P7 is related to Muthappan (PW13) and the
concerned post-mortem certificate has been given by the third accused and claim
amount has been received by the second accused. Ex.P8 is related to Marimuthu
(PW7) and the concerned post-mortem certificate has been given by the third
accused and the claim amount has been received by the first accused. Ex.P9 is
related to Murugan (PW6) and the concern post-mortem certificate has been given
by the third accused and the claim amount has been received by the first
accused. Ex.P10 related to Ramasamy (PW8) and the concerned post-mortem
certificate has been given by the third accused and the claim amount has been
received by the first accused. Ex.P11 is related to Nagarajan (A-2) and the
concerned post-mortem certificate has been given by the fourth accused and the
claim amount has been received by the first accused. Ex.P12 is related to
R.Paraman and the concerned Post-mortem certificate has been given by the fourth
accused and the claim amount has been received by the first accused. Ex.P13 is
related to Rajendaran (PW5) and the concerned post-mortem certificate has been
given to the fourth accused and the claim amount has been received by the first
accused.
20.The trial Court has invited the conviction and sentence on the basis of
Exs.P6 to P13. Now the Court has to perpend as to whether the conviction and
sentence can be invited against the accused on the basis of Exs.P6 to P13. The
claimant in Ex.P6 has been examined PW14. He would say in his evidence that he
owned goats and the same have been insured. Since he has not supported the
version of the prosecution, he has been treated as hostile witness. Therefore,
it is quite clear that Ex.P6 is of no use so as to prove the case of the
prosecution.
21.The claimant in Ex.P7 viz., Muthappan has been examined as PW13. He
would say in his evidence that he has not owned any cattle. During the course of
cross-examination, he would say that the first accused has acted as a treasurer
in Milk Society and in the said milk society, he run a tea stall and further he
would say in his evidence that in Ex.P22 it is stated that the father name of
the claimant is Ramasamy Counder and he has no connection to it. It is not the
evidence of PW13 that he owned a cattle and the same has been insured and a
false insurance claim has been made. Therefore, the evidence of PW13 is also of
no use so as to prove the case of the prosecution.
22.The claimant in Ex.P8 viz., Marimuthu has been examined as PW7. He has
stated in his evidence that he owned a buffalo and the same has passed away and
he claimed compensation and compensation amount belongs to him. From the
evidence of PW7, it is quite clear that the claim made in respect of death of
his cattle is genuine.
23.The claimant in Ex.P9 viz., Murugan has been examined as PW6. He would
say in his evidence that he has not owned any cattle and he has also not claimed
any compensation. It is not the evidence of PW6 that he owned an animal and the
same has been insured with the National Insurance Company Limited and the same
has not passed away. Therefore, the evidence of PW6 has also not at all lent
support to the case of the prosecution.
24.At this juncture, the following aspects must be noted down. From the
evidence of PW6, the Court can easily discern that father name of PW6 is
Vasakar. But, from the close reading of Ex.P9 would reveal that the father
name of Murugan mentioned in Ex.P9 is Vellaiyappan. Therefore, PW6 is an utter
stranger and he has no connection whatsoever with Ex.P9. But, the prosecution
has examined PW6 for the reasons best known to it. The attempt made by the
prosecution is highly deplorable and also condemnable.
25.The claimant in Ex.P10 viz., Ramasamy has been examined as PW8. He has
also stated in his evidence that he insured four buffaloes in the National
Insurance Company Limited and one has passed away and subsequently he claimed
compensation and therefore, the evidence of PW8 is totally contra to the
contention urged on the side of the prosecution.
26.The claimant in Ex.P11 viz., N.Nagarajan and the claimant in Ex.P12
viz., R.Paraman have not been examined on the side of the prosecution.
27.The claimant in Ex.P13, S.Rajendaran has been examined as PW5. He
would say in his evidence that the signature found in Ex.P13 is not his
signature and he has not owned cattle at any point of time and the second
accused has met him and directed him to handover if any letter received by him
from the Insurance Company and the first accused has given one cheque and the
same has been put in his account and further he would say in his evidence that
the amount found in the cheque which has been given in his name has been
credited in his account and he has not withdrawn the same.
28.The trial Court has believed the evidence of PW5. At this juncture, it
would be more useful to look into the entire evidence adduced by PW5. In fact,
this Court has closely perused the entire evidence adduced by him and during the
course of cross-examination he would say that the accused 1 & 2 are his
brothers-in-law. He married one Uthayarani who is the daughter of Sennappa
Counder, senior paternal uncle of the accused 1 & 2 and their marriage has been
held in the year 1980 and subsequently he divorced her and conducted second
marriage and his mother has been murdered and a criminal case is pending against
his wife Uthayarani and others. The said Uthayarani has also instituted a
criminal case against him, his father and brother. The accused 1 & 2 are
lending their support to the said Uthayarani and due to that a despair is in
existence between him and the accused 1 & 2. Therefore, from the evidence of
PW5, the Court can easily learn that PW5 is having strong enmity against the
accused 1 & 2. If really PW5 has not at all insured his cattle, if really the
same has not passed away, definitely, he would not have accepted the cheque
given in respect of the claim alleged to have been made by him. Therefore, the
evidence of PW5 cannot be believed in. Further PW2 has stated in his evidence
that PW5 has reported that he received a cheque from the National Insurance
Company Limited and the same has been given on false claim and on the basis of
his representation, he (PW2) has given a complaint and subsequently after
knowing the evil design of PW5, he (PW2) has sent another requisition to the
National Insurance Company Limited to the effect not to take action on the basis
of his complaint. Therefore, it is quite clear that PW5 is the harbinger to
initiate present criminal proceedings against all the accused.
29.The trial Court has come to the conclusion that some of the post-mortem
certificates alleged to have been issued by the accused 3 & 4 are not genuine.
In fact, this Court has closely perused all the post-mortem certificates issued
by the accused 3 & 4. Except some flimsy mistake, no stupendous mistakes are
found in the post-mortem certificates issued by the accused 3 & 4. Even at the
risk of jarring repetition, the Court would like to point out that it is not the
case of the prosecution that the animals, which are not in existence, have been
insured with the National Insurance Company Limited. The specific case of the
prosecution is that the accused 1 to 4 have conspired together so as to enrich
themselves and in pursuance of their conspiracy, they created fake post-mortem
certificates as if the animals of the persons mentioned have expired. In fact,
this Court has discussed Exs.P6 to P13 in detail and found that some of the
claimants have admitted their claims and some of the claimants have not at all
been examined on the side of the prosecution. Therefore, on the basis of some
flimsy mistakes found in some post-mortem certificates, the Court cannot come to
a conclusion that the accused have committed offences mentioned in the charges.
30.It has already been pointed out that PW3 viz., Selvarajan has clearly
spoken about the requisite procedure for making insurance of a particular animal
and further he has stated in his evidence about the procedure to be adopted for
giving compensation and only after ascertaining the claim as genuine,
compensation would be given. Further he would say in his evidence that if there
is no doubt in the claim, the same would be sanctioned. PW4, Srinivasan would
say that only after ascertaining the claims made in Exs.P6 to P13 are genuine,
compensation amounts have been disbursed. From the evidence of PWs.3 & 4, the
Court can easily come to a conclusion that the claims made in the present case
are genuine.
31.The trial Court as adverted to earlier has invited its conviction and
sentence mainly on the basis of the evidence given by PW5 viz., Rajendran and
also some flimsy mistakes found in some post-mortem certificates. It has
already been pointed out that some of the claimants have not at all supported
the version of the prosecution and some of them have not been examined on the
side of the prosecution. Further PW6 has had no connection whatsoever with
Ex.P9 and the prosecution has examined him for the reasons best known to it.
Therefore, it is quite clear that the prosecution has not adduced trustworthy
and also adminicle evidence in the present case so as to mulct the accused with
punishments. The trial Court has invited the conviction and sentence only on the
basis of fiction, surmise and conjecture. It is an everlasting principle of law
that in a criminal case unless adminicle, cogent and trustworthy evidence are
available, it is highly impossible on the part of the Court to invite
conviction and sentence against the accused concerned. Further conviction and
sentence cannot be invited on the basis of mere presumption, surmise and
conjecture. Therefore, the approach made by the trial Court is totally
incorrect. Under the said circumstances, the argument advanced by the learned
counsel appearing for the appellants/accused are really having subsisting force
and whereas the argument advanced by the learned Special Public Prosecutor for
CBI cases is sans merit.
32.It has already been pointed out that the trial Court has invited
conviction and sentence against the accused 3 & 4 under Sections 13(1)(d) read
with 13(2) of the Prevention of Corruption Act, 1988. It is an admitted fact
that no specific charge has been framed against the accused 3 & 4 under the said
Sections. Even though specific charge has not been framed against the accused 3
& 4 under the said Sections, the trial Court has invited conviction and sentence
against them under the said Sections. On that score also the approach made by
the trial Court is totally against law.
33.It has already been pointed out that the prosecution has not at all
established the guilt of each and every accused under the Sections found in the
charges and the trial Court has invited conviction and sentence merely on the
basis of surmise and conjecture, and therefore, the entire conviction and
sentence passed by the trial Court are liable to be set aside and altogether,
the present criminal appeals can be allowed.
34.In fine, the present criminal appeals are allowed and the conviction
and sentence passed against the appellants/accused in Calendar Case No.2 of 1995
by the Special Court for CBI Cases, Madurai are set aside and the
appellants/accused are acquitted of the charges. Bail bonds executed by them
shall stand cancelled and the fine amounts paid by them are ordered to be
refunded forthwith.
gcg
To:
1.The Special Judge, (for CBI Cases)
Madurai.