In the High Court of Judicature at Madras
Dated: 18/07/2002
Coram
The Honourable Mr. Justice A.K. RAJAN
Crl. Appeal No. 338 of 1991 and Crl. Appeal No. 443 of 1991
V. Hariharan Appellant in C.A.338 of 1991
M.G. Radhakrishnan Appellant in C.A.443 of 1991
-Vs-
STATE by CBI Respondent in both the appeals
Appeal filed under Section 374 (2) of Code of Criminal
Procedure against the order of conviction of appellants by learned VIII
Additional Sessions Judge, Madras dated 22.04.1991 and made in C.C.No. 57 of
1978.
!For appellants : Mr. K.S. Rajagopalan
in C.A.No. 338 of 1991
Mr. Asokan Senior Counsel
for Mr. C.R. Suthandram
in C.A.No. 443 of 1991
^For respondent : Mr. E. Joseph R. Daniel
Spl. Public Prosecutor for
CBI cases in both the appeals
:J U D G M E N T
These are the appeals filed against the order of conviction of
A2 and A1, respectively, for offences under
Sections 120 B, 420, 409 of Indian Penal Code and Section 5 (2) read with
5(1)(d) of Act II of 1947, on various charges and sentencing them to undergo
rigorous imprisonment for three years and also to pay a total fine of
Rs.5000/- and Rs.10,100/-, respectively.
2. Originally, there were three accused before the trial
Court. The trial Court acquitted A.3 of all the charges. A.1 was the Manager
of the State Bank of Hyderabad. A2 was the friend of A.1 and customer of the
bank. A.3 was the wife of A.2.
3. The case of the prosecution is that A1 to A3 along with
some other persons entered into criminal conspiracy during the year 1975 —76
to cheat the State Bank of Hyderabad, Indra Nagar Branch and others, to commit
criminal misconduct by abuse of official position by corrupt or illegal means
or by otherwise and obtain pecuniary advantage, and to commit criminal breach
of trust in respect of the funds of the State Bank of Hyderabad, Indira Nagar
Branch by A.2 and A.3, by opening accounts on various names and in various
banks, including the State Bank of Hyderabad, Indra Nagar Branch in the name
of fictitious persons and cheques issued by such fictitious persons were
credited into the account of A.2 and A.3, in the names of friends of A2 and
A.3 and also in the name of certain fictitious firms and thereby they
committed offence punishable under Section 120 B read with Section 420 and 409
of Indian Penal Code, Section 5 (2) read with Sections 5 (2) (d) of Act II of
1947.
4. The trial Court framed about 39 charges under
various heads. After trial, the trial Court found A.1 not guilty of certain
charges (ie) charge Nos. 10,11,14,15 and 18, but convicted him in respect of
other charges. The trial Cour all the charges. A.2 was found guilty of the
charges punishable under Section 120 B read with Section 420 IPC, Section 5
(2) read with 5 (2)(d) of Act II of Act 1947 and consequently, imposed
sentence of imprisonment for three years RI and a fine of Rs.5000/- and
Rs.10,100/-, respectively.
5. From the evidence of the prosecution witnesses, it is
found that accounts were started in fictitious firms’ names, viz, M/s.
Growell Indusries showing as one “S. Radhakrishnan” as the proprietor, M/s.
Balajee Industries, M/s. Ramesh Enterprises, M/s. Versatile Plastice and
M/s. Seagul, etc.
6. On 15.03.1976 and 16.03.1976, two cheques under Exs.
P.148 and P.149 for sum of Rs.31,000/- and Rs.41,000/-, respectively were
credited into the accounts of A2 before it was being cleared. A.2 gave
different cheques which were credited to the accounts of M/s. Growel
Industries & M/s. Ramesh enterprises etc.
7. The modus operandi of the accused is that the cheques were
issued by fictitious persons either in the name of M/s. Growel Industries or
M/s. Ramesh Enterprises, were credited into the accounts of A.2 and A.3 by
Ex.A.1 even before it was sent for collection and passed by the other banks.
By using such method of crediting the cheques issued by those persons, A.1
facilitated A.2 and A.3 to make use of those amounts credited into their
accounts. Subsequently, some of the cheques sent for collection were not
honoured; few cheques have been repeatedly sent for collection, remained
dishonoured for a considerable period. By this process of “kite flying”, A.2
and A.3 had the advantage of cash liquidity to the tune of Rs.1.5 lakhs in the
year 1975 The lower Court found A.1 guilty of charges under Section 120-B read
with Section 420 and 409 of Indian Penal Code.
8. Learned counsel appearing for the appellants submitted
that there is no loss incurred by the bank . Entire amount has been realised.
A.1 was only doing the act in accordance with the procedures followed in the
bank. Discounting a cheque is one of the recognised services rendered by the
banks, that is what A.1 did in this case also. It was only bona fide action
not with any intention of cheating the bank. Therefore, A.1 cannot be held to
be guilty of offence. It is seen from the evidence that A.1 had not
discounted the cheques. The entire amount as found in the cheques has been
credited. In case of discount, a commission has to be deducted, which would
go as income to the bank. But this was not done. Therefore, it is not a
regular service rendered by the banks. Further, these cheques were local
cheques which cannot be discounted as spoken to by P.W.24. Therefore, the
argument of the learned counsel for the appellants that it is only an
innocuous act which is one of the service rendered to the customers, is not
acceptable.
9. Learned counsel further argued that the entire amount
together with interest on the dishonoured cheques have been collected.
Therefore, there is no loss caused to the banks at all and, therefore, the
charge under Sections 5(2) read with 5(2)(c) & (d) of Act II of 1947 , cannot
be said to have been made out. Since the amount has been repaid, the charge
under Section 420 of Indian Penal Code also cannot be sustained.
10. It is true that ultimately the bank has not sustained any
loss since the entire amount has been credited to the bank account together
with interest.At the same time by indigenous method followed by A.1, namely by
crediting the cheques issued in fictitious names, immediately without even
discounting the cheques, is not permissible under the rules of the banks.
Further, local cheques cannot be discounted at all; local cheques cannot be
credited unless it has been passed by drawee the bank. This is spoken to by
P.W.24. It is proved by the records that A.1 has credited cheques in the
account of A.2 without waiting for any reply from the other bank, and
ultimtely, those cheques were dishonoured. Therefore, immediately the bank
did not get the amount credited into the account of A.2 by A.1, thereby the
bank was made to sustain a loss during the period when the amount was not
actually honoured by other banks and thereby the bank has been made to suffer
a loss over a period of time. This action of A.1 definitely attracts Section
420 of Indian Penal Code since it is found that all the six concerns in whose
names cheques were issued and credited in the account of A.2, were fictitious
and non-existence and this fact was known to A.1. But yet he has credited
these amounts in the account of A.2. Therefore, the charges under Section 120
B read with Sections 420 and 409 IPC are proved beyond any reasonable doubt.
The lower appellate Court was right in convicting the accused under these
sections. Therefore, the conviction of these accused under these offence is
legal and valid.
11. Learned counsel appearing for the accused submitted that
regarding sentence of A.1 is concerned, he has been dismissed from service and
further more, he underwent open heart surgery. A.2 is aged about 60 years and
is also sick. Since the occurrence took place in the year 1975—76, and also
taking into account the fact that entire amount has been repaid by them with
interest, some indulgence should be shown regarding sentence.
12. The occurrence took place in this case some time in the
year 1 975—76, we are now after 26 years. Considering this fact and also the
fact that entire amount had been paid to the bank by the accused together with
interest, since there is no loss sustained by the bank and A.1 has been
dismissed from service already, and he had also underwent open heart surgery,
this Court is of the view that they need not be sent back to jail again;
therefore, the imprisonment imposed by the trial Court is reduced to
imprisonment till the raising of the Court. In view of the reduction of
sentence, an additional fine of Rs.5 000/-(Rupees five thousand only) each is
imposed on A.1 and A.2. The accused are directed to appear before the X
Special Sessions Judge/ Additional Special Judge, CBI Cases, on or before 19th
of August, 2002 and pay the above said additional fine before the said Court.
13. With these modifications, the appeal is dismissed.
A.K. RAJAN.,J.
18.07.2002
Index: Yes
Internet Yes
kvsg
To
1) The VIII Addl. Sessions Judge, Madras.
2) The VIII Addl. Sessions Judge, Madras through the
Principal Sessions Judge, Madras.
3) X Additional Special Judge for CBI Cases, Madras.
Crl. Appeal Nos. 338
and
443 of 1991