IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 90 of 2002()
1. RAMACHANDRAN,AGED 46 YEARS,
... Petitioner
Vs
1. STATE OF KERALA,REPRESENTED BY
... Respondent
For Petitioner :SRI.T.K.PANKAJASHAN PILLAI
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :19/07/2010
O R D E R
M.SASIDHARAN NAMBIAR,J.
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CRL.R.P.NO.90 OF 2002
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Dated 19th July, 2010
O R D E R
Petitioner was convicted and
sentenced for the offences under Section
420 and 468 of Indian Penal Code by
Judicial First Class Magistrate-II, Kochi
in C.C.614/1995. Petitioner challenged the
conviction and sentence before the Sessions
court, Ernakulam in Crl.A.31/1999. Learned
Additional Sessions Judge on re-
appreciation of evidence confirmed the
conviction and sentence and dismissed the
appeal. It is challenged in the appeal.
2. PW1, Manager of Kochi Branch of
State Bank of India filed Ext.P1 complaint
before Sub Inspector of Police,
Mattancherry, based on which Ext.P22 FIR
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was registered. Under Ext.P22 FIR, crime
No.13/1995 was registered against the five
accused stated in Ext.P1 for the offences under
Sections 468 and 420 of Indian Penal Code read
with Section 34 of Indian Penal Code. PW6, the
investigating Officer, based on the
investigation submitted a report deleting the
other four accused, except the petitioner from
the array of accused and also deleted the
offence under Section 34 of Indian Penal Code.
After completing the investigation, charge was
laid against the petitioner which was taken
cognizance by the learned Magistrate.
Petitioner pleaded not guilty. Prosecution
examined six witnesses and marked 22 exhibits.
On the side of the petitioner, Ext.D1 copies of
lorry receipts were marked and DW1, his brother
was examined. Based on the evidence learned
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Magistrate found the petitioner guilty and
convicted and sentenced him for both the
offences. Learned Sessions Judge on re-
appreciation of the evidence, confirmed the
conviction. Learned counsel appearing for the
petitioner would contend that there is no legal
evidence to convict the petitioner and the
trial court and the appellate court did not
appreciate the evidence in the proper
perspective and therefore, the conviction is
not sustainable. Learned counsel would argue
that appreciation of evidence was perverse and
Ext.P18 letter was relied on by the courts
below without legal proof. So also Ext.P19
which is only a photocopy of a statement was
relied on as if, it is the statement of the
petitioner admitting the offence and therefore,
the conviction is illegal.
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3. Learned Public Prosecutor argued
that evidence of Pws.1 and 2 establish that no
consignment was sent and though Exts.P5, P9 and
P13 bills were produced before the Bank for
discounting, along with Exts.P6, P10 and P14
lorry receipts and Exts.P8, P12 and P16
insurance certificates. It is pointed out that
evidence of PW2 establishes that he had gone to
Bilaspur and Delhi and found that there is no
Rishi Agencies, who allegedly issued Exts.P5,
P9 and P13 bills and Ext.P18 show that Savitha
Roadlines who allegedly issued Exts.P6, P10 and
P14 lorry receipts were not functioning after
1986 and those receipts are not genuine and in
such circumstances, the conviction perfectly
legal.
4. Prosecution case is that petitioner
as Proprietor of the proprietary concern
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M/s.Chandra Enterprises applied for cash
credit facility which was originally granted
for Rupees Two Lakhs and thereafter enhanced
to Rupees Three Lakhs and then to Rupees Five
lakhs and finally on his application in
December 1991, the facility was extended to
Rupees Twelve Lakh and petitioner thereafter
produced four bills for discounting to a tune
of Rs.9.19 Lakhs and those bills were paid and
later on 31/12/1991 another bill for Rs.2.1
Lakh was again discounted by the bank and
proceeds were credited to the account of the
petitioner and that bill was drawn by NamChandh
Vijayakumar of Delhi. On 30/1/1992 two bills
each for Rs.2,77,500/- were produced and and
those bills were also issued by the same
Namchand Vijayakumar and the supporting
invoice, lorry receipts and transit insurance
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certificates were produced and when those bills
were forwarded, they were returned as not paid
and petitioner was asked to pay the amount and
then petitioner represented that he had other
orders and brought Exts.P5, P9 and P13 bills
for aggregate of Rs.7.51 Lakhs and believing
the representation that they are genuine, they
were allowed to be discounted and those bills
were sent for collection. But under Ext.P17
they were returned with the endorsement, bills
were not paid. According to Ext.P1 complaint,
PW2 Manager was deputed to conduct an enquiry
and he went to Delhi and Bilaspur and found
that there is no Rishi Agencies and the goods
consigned were not at Delhi or Bilaspur as
shown in Exts.P4, P10 and P14 lorry receipts.
Therefore, Bank got convinced that they are
forged receipts and bills. Ext.P1 complaint was
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then filed.
5. Final report submitted by the
investigating officer does not disclose that
apart from the enquiry conducted by PW2, the
Investigating Officer conducted any
investigation worth the name.
6. Learned Magistrate and learned
Sessions Judge relied on Ext.P18 to find that
Savitha Roadlines who issued Exts.P6, P10 and
P14 were not functioning in July 1992 and
therefore, they are forged receipts. Learned
Magistrate and learned Sessions Judge also
relied on Ext.P19, which is only a photocopy
of a letter/statement allegedly given by the
petitioner. Question is whether Exts.P17 and
P18 could have been relied on by the courts
below without proper proof.
7. Ext.P1 complaint shows that when
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Exts.P5, P9 and P13 bills were returned without
payment, the Manager of the bank addressed the
Head Office of Savitha Roadlines, with copy of
Exts.P6, P10 and P14 lorry receipts to find out
whether they are genuine, Ext.P18 is the reply
received thereafter. It is dated 5/3/1993 and
addressed to Assistant General Manager, State
Bank of India, Kochi. True, Ext.P18 shows that
Savitha Roadlines was not functioning after
April 1986 and the receipts being issued by
Savitha Roadlines is not like Exts.P6, P10 and
P14 receipts produced by the petitioner before
the bank. Question is whether Ext.P18 letter is
proved. Though PW1 was examined, even the
letter sent by the bank, for which Ext.P18
reply was sent, was not produced. Ext.P18
letter is seen signed for Savitha Roadlines by
its manager, though his name is not shown. PW6,
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Investigating Officer had not investigated
about Ext.P18 much less, the correctness of the
statement therein. At the same time, when DW1
was cross examined, what was suggested to DW1
was only that Savitha Roadlines was not
functioning after 1991. Ext.P18 could not have
been relied on by the courts below, without
proof of the document. As the manager who
issued Ext.P18 or any other official of Savitha
Roadlines was examined, Ext.P18 stands not
proved. Therefore, no reliance could be placed
on Ext.P18.
8. Ext.P19 was produced, at the time of
evidence, as a photocopy of the statement
furnished by the petitioner. Photocopy cannot
be admitted as secondary evidence without
establishing that primary evidence is not
available. Evidence of PW1 through whom
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Ext.P19 was marked, show that original of
Ext.P19 is available with the bank at Chennai.
Without producing the original, Ext.P19
photocopy cannot be admitted in evidence and
cannot be relied on. Therefore, Ext.P19 also
could not have been relied on by the courts
below.
9. What remains is only the evidence of
Pws.1 and 2 and PW6. Pws.3 and 4 are only
witnesses to Ext.P20 mahazar. PW5 is the Joint
Director of Kerala Forensic Science Laboratory,
who furnished Ext.P21 report on examination of
the documents sent to him. Ext.P21 with the
evidence of PW5 only establish that signature
found as that of the proprietor in Exts.P5, P9
and P13 bills as well as the lorry receipts and
the insurance certificates are that of the
petitioner Even without the evidence of the
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expert, those signatures are admitted. Those
signatures are the signatures of the
petitioner, capacity as the proprietor of the
proprietary concern. Therefore, evidence of
Pws.5 and Ext.P21 also does not establish the
offences alleged against the petitioner.
10. Evidence of PW2 was acted upon by
the courts below to hold that there was no
Rishi Agencies who issued Exts.P5, P9 and P13
bills. Oral evidence of PW2 is insufficient to
establish that there was no Rishi Agencies or
that there was no office for Savitha Roadlines
at New Delhi or Bilaspur. Though PW2 deposed
that he has submitted report, the report was
not seen marked, though in fact, the report is
seen among the records produced by the
prosecution. But no attempt was made to prove
that report. PW6, who should have investigated
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on these aspects including the question whether
Rishi Agencies is functioning or not and
Savitha Roadlines was defunct or was having
office at Delhi or Bilaspur did not conduct any
investigation. PW1 has no personal knowledge on
these aspects. His evidence only show that
Exts.P5, P9 and P13 bills were produced along
with the supporting lorry receipts and invoices
and insurance certificates. He did not verify
whether those receipts were genuine and whether
goods were sent as seen in Exts.P6, P10 and
P14. Even though PW1 alleged that Exts.P8, P12
and P16 insurance certificates are also forged,
PW6 did not conduct any investigation on that
aspect. None of the officers of the Insurance
company who issued Exts.P8, P12 and P16
certificates were examined. Therefore, there is
no legal evidence to prove that Rishi Agencies
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who issued Exts.P5, P9 and P13 receipts is not
in existence or the receipts are not genuine or
that they did not issue Exts.P5, P9 and P13.
There is also no legal evidence to prove that
Savitha Roadlines who issued Exts.P6, P10 and
P14 was not functioning during 30/7/1992 or
that those lorry receipts are forged lorry
receipts. Similarly, there is no evidence to
prove that lorry receipts were issued without
the supporting goods sent thereunder. As
pointed out by the learned counsel appearing
for the petitioner, it cannot be presumed that
Exts.P8, P12 and P16 which are insurance
certificates, issued by Nationalized Insurance
Company are not genuine or that there was no
such articles which were insured as shown in
the certificates. The insurance company should
have verified the goods and then only insured
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them and issued the certificates. There is no
evidence to show that insurance certificates
were not issued in accordance with the rules.
In such circumstances, it can only be found
that prosecution did not succeed in
establishing that Exts.P5, P9 and P13 bills,
Exts.P6, P10 and P14 lorry receipts, Exts.P8,
P12 and P16 insurance certificates and the
invoices were forged. Therefore, conviction for
the offence under Section 468 of Indian Penal
Code is unsustainable. Similar is the case with
the conviction for the offence under Section
420 of Indian Penal Code. When there is no
evidence to prove that Exts.P6, P10 and P14
lorry receipts or Exts.P5, P9 and P13 bills
were forged or that petitioner induced the Bank
to part with money, it can only be held that
prosecution did not establish that petitioner
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cheated the bank by inducing the bank to
discount the bills without sending the goods
as shown in the respective lorry receipts.
Hence conviction for the offence under Section
420 of Indian Penal Code is also not
sustainable.
Revision is allowed. Conviction of the
petitioner for the offence under Sections 468
and 420 of Indian Penal Code is set aside.
Petitioner is found not guilty of the offences.
He is acquitted. The bail bond executed by him
stands cancelled.
M.SASIDHARAN NAMBIAR,
JUDGE.
uj.