JUDGMENT
S. Sardar Zackria Hussain, J.
1. This appeal is filed by the Complainant against the acquittal of A1 to A5 in C.C.No.182 of 1993 on the file of V Additional Special Court, Chennai, as per the judgment dated 5.2.1997.
2. A3 and A4 are brothers. A5 is the daughter of A3. A2 was running a company in the name of Surya Cabs at No.139, N.H. Road, Madras 34 and owned an Ambassador car bearing registration No.TMO 2790, which was in the possession of A3 by way of security in respect of the loan availed by A2 from A3 and was used by A5, who is the daughter of A3.
3. As per the case of prosecution, A1 as a public servant and A2 to A5, who are closely related to each other conspired together and pursuant to such conspiracy, to cheat United India Insurance Corporation Limited, Bangalore, A1 arranged to issue insurance policy on 20.1.1989 by ante-dating the same as if the insurance policy was issued on 16.1.1989, though the policy lapsed on 13.12.1983, to escape from the liability in respect of the compensation claimed by the owner of the Mercedez Benz car bearing registration No.TCV 2752 to which damage was caused by A5 in the accident that took place on 18.1.1989 at Music Academy Junction, Madras-4, due to rash and negligent driving of the Ambassador car bearing registration No.TMO 2790 by A5. Further, A1 in his capacity as a public servant and A2 to A5 also removed docket sheet relating to the Ambassador car bearing registration No.TMO 2790. Accordingly, the Inspector of police, SPE/CBI/ACB/MADRAS filed complaint against the accused that A1 committed the offences punishable under Sections 120B read with 420, 420 and 201, I.P.C. and Section 13(1)(d) read with Section 13(2)(b) of Prevention of Corruption Act and A2 to A5 committed the offences punishable under Sections 120B read with 420 and 420, I.P.C.
4. In order to prove such case, the prosecution examined P.Ws.1 to 16 and marked Exs.P-1 to P-28. As against such evidence, the accused marked Exs.D-1 to D-13.
5. When the accused was questioned under Section 313 of the Code of Criminal Procedure, on the basis of the incriminating evidence made available against them by the complainant, the accused denied the offence and stated that false case has been foisted against them.
6. The learned V Additional Special Judge, Chennai, who tried the case, found that no case is made out against A1 to A5 and accordingly acquitted A1 to A5, which is now under challenge in this appeal by the Complainant.
7. Heard the learned Special Public Prosecutor for the CBI Cases, and the learned counsel for the respondents.
8. The learned Special Public Prosecutor for CBI Cases submitted that the Ambassador Car bearing Registration No.TMO 2790 was not insured on 18.1.1989 and after the policy lapsed in 1983 as stated by P.Ws.9 and 13 and the same has not been considered properly by the Special Judge. It is then submitted that the rejection of the evidence of P.W.7 by the trial Court is not proper. The learned Special Public Prosecutor also argued that P.W.7 and P.W.4 have spoken to the fact that on 16.1.1989 no cheque relating to Ex.P-5 Insurance Policy was received in the office of A1 as noted in the Inward Register Ex.P-1. It is further argued that entry relating to Ex.P-7 cheque was not made on 20.1.1989 as per the entry made in Ex.P-1 Inward Register suggesting the fact that Ex.P-1 cheque was received directly by A1 and accordingly no entry was made in the Inward Register Ex.P-1.
9. It is also submitted by the learned Special Public Prosecutor for CBI Cases that P.W.4 has stated in his evidence about the issuing receipt in respect of the amount mentioned in Ex.P-7 cheque on 20.1.1989 and the same was not considered by the trial Court. It is then argued that though P.W.7 has stated in his evidence that an amount of Rs.120/- was not paid by him for issuing Ex.P-5 through Ex.P-7 cheque for issuance of insurance policy to A1, the finding of the trial Court that it was the balance amount paid by P.W.7 to A1 after paying road tax for the Ambassador car bearing registration No.TMO 2790 is incorrect.
10. It is also argued by the learned Special Public Prosecutor for CBI Cases that P.W.7, who is a permanent resident in Madras, has nothing to do with the Ambassador car bearing registration No.TMO 2790, which met with an accident on 18.1.1989, and that there is no necessity to take insurance policy from A1, who was working in Bangalore, in respect of the Ambassador car bearing registration No.TMO 2790 which was plying in Madras.
11. It is then argued by the learned Special Public Prosecutor for CBI Cases that inasmuch as there is no valid insurance policy for the Ambassador car bearing registration No.TMO 2790 on the date of accident, viz., 18.1.1989, the insurance policy Ex.P-5 was issued ante-dating the same as 16.1.1989 by A1. It is also argued by the Special Public Prosecutor for CBI Cases that P.Ws.2 and 3 have stated in their evidence that Ex.P-7 cheque was received in the office of A1 on 20.1.1989 and it was ante-dated as 16.1.1989 to make it appear that the insurance cover for the Ambassador car bearing registration No.TMO 2790 was taken on 16.1.1989 itself. Inasmuch as A1 is a public servant and issued Ex.P-5 insurance policy by ante-dating the same which is valuable thing, clearly the offence under Section 13(1)(d) of the Prevention of Corruption Act is attracted, despite the fact that Insurance Company has not sustained any monetary loss. Since A1 is related to A3, A4 and A5 according to the learned Special Public Prosecutor, Ex.P-5 policy was issued by ante-dating the same as 16.1.1989, though actually it was taken only on 20.1.1989 to meet out the compensation claim in respect of the accident that took place on 18.1.1989 due to rash and negligent driving by A5 and thereby causing damage to the Mercedez Benz car bearing registration No.TCV 2752.
12. Further, according to the learned Special Public Prosecutor for CBI Cases, inasmuch as A1 is the relative of A3 to A5 and by adopting illegal means A2 obtained insurance policy Ex.P-5, which being valuable thing and to meet out the liability in respect of the compensation claimed by the owner of the Mercedez Benz car bearing registration No.TCV 2752 and in this regard satisfactory evidence has been let in, the offence under Section 13(1)(d) of the Prevention of Corruption Act is clearly proved against all the accused, who conspired together for obtaining the said policy and to cheat the insurance, since A1 removed the docket sheet relating to the policy of the said Ambassador car bearing registration No.TMO 2790, he is also punishable under Section 201 I.P.C.
13. Learned counsel for the respondents/A1 to A5 firstly submitted that no case is made out against A2 to A5, in that the prosecution failed to establish the conspiracy entered into between A2 to A5 and A1. Then, it is submitted that inasmuch as no complaint was made by the Insurance Company and F.I.R. (Ex.P-28) has been registered by P.W.12, the Inspector Police, SBE/CBI/ACB/Madras during the relevant period under instruction of Superintendent of Police and who himself took up investigation and after completing the investigation filed the charge-sheet against the accused, which is not proper.
14. Then by referring the evidence of P.W.1, it is argued by the learned counsel for the respondents/A1 to A5 that inasmuch as it was the practice that for the receipt of the cheque, receipt will be given under the coverage either from the date of receipt of the cheque or after the date of receipt of the cheque and as such, though the cheque Ex.P-7 dated 16.1.1989 was received and policy Ex.P-5 was issued on 20.1.1989 for the period from 16.1.1989 to 15.1.1990, there is nothing irregular for issuing such policy.
15. Further, it is submitted by the learned counsel for the respondents/A1 to A5 that since the claim petition M.C.O.P.No.1640 of 1989 filed by P.W.11, the owner of the Mercedez Benz Car bearing registration No.TCV 2752, was dismissed as per the order under Ex.P-11 and no wrongful loss caused to the Insurance Company, the offence of cheating (420 I.P.C.) is not attracted and made out against the accused.
16. It is also argued by the learned counsel for the respondents/A1 to A5 that it is not proved that A1 removed the docket-sheet related to Ex.P-5 policy so as to say that A1 is liable to be punished under Section 201 I.P.C. The learned counsel also argued that though F.I.R. was registered by P.W.12 on information, who himself took up investigation and after completing the same filed charge-sheet on 4.10.1993, which is irregular.
17. Learned counsel for the respondents/A1 to A5 also submitted that since the appeal has been filed against the acquittal, this Court cannot take different view and if two views are possible one indicating guilt and other innocence, the view favourable to the accused is to be accepted and that the prosecution also failed to establish that A1 obtained pecuniary advantage by abusing official position as a public servant for attracting Section 13(1)(d) of the Prevention of Corruption Act
18. In support of such contentions, the learned counsel for the respondents/A1 to A5 relied on the following decisions:-
(1) K.R.Purushothaman v. State of Kerala reported in 2005(12) SCC 631,
(2) Kalyan v. State of U.P. reported in (2002) M.L.J. (Criminal) 196,
(3) Hariyana Thirupala v. Public Prosecutor, High Court of A.P. reported in AIR 2002 Supreme Court 2821,
(4) C.Antony v. K.G.Raghavan Nair reported in 2003(1) Crimes 76 (SC),
(5) Ramji Suriya v. State of Maharashtra ,
(6) Bhim Singh Rup Singh v. State of Maharashtra ,
(7) J.H.Bharucha v. State of Maharashtra reported in AIR 1977 Supreme Court 1213,
(8) J.Jayalalitha v. State reported in 2001 Supplement CTC (Madras) 112,
(9) J.Jayalalitha and Ors v. State rep. by Addl. Superintendent of Police reported in 2002(1) Crimes 175,
(10) R.Sai Bharathi v. J.Jayalalitha reported in 2003 AIR SCW 6349,
(11) S.K.Kale v. State of Maharashtra ,
(12) B.H.Narasimha Rao v. Government of A.P. , in which the Hon’ble Supreme Court held thus:-
On the failing of the charge under Section 120B, I.P.C., the other offences lose their roots, as without the aid of Section 120B, I.P.C., it cannot be spelled out or deduced even though the appellant stands directly charged for specific offences, with and without the applicability of Section 120B, I.P.C.
19. As per the case of prosecution, A1 was working as Manager, United India Insurance Corporation Limited, Museum Road Branch, Bangalore, in January, 1989, and as such, A1 being a public servant and closely related to A3 to A5 misusing the position as such, arranged for the issuance of the insurance policy Ex.P-5 on 20.1.1989 in the name of A2, who is the owner of the Ambassador Car bearing Registration No.TMO 2790 for the period from 16.1.1989 to 15.1.1990 on the basis of the cheque Ex.P-7 dated 16.1.1989, which was actually given on 20.1.1989 by ante-dating the cheque as 16.1.1989 and which car was in the possession of A3 by way of security in respect of the loan availed by A2 from A3 and used by A5, the daughter of A3, pursuant to the conspiracy entered into between A1 and A2 to A5 to escape from the liability in respect of the compensation claimed by P.W.11, the owner of the Mercedez Benz Car bearing registration No.TCV 2752 to which damage was caused by A5 in the accident that took place on 18.1.1989 due to rash and negligent driving of the Ambassador car bearing registration No.TMO 2790 and that such policy was issued as per the arrangement made by A1 to cheat the United India Insurance Corporation Limited, Bangalore, and further it is the case of the prosecution that in that view A1 also removed the docket-sheet relating to the insurance policy covering the Ambassador car bearing registration No.TMO 2790.
20. Further, it is the case of prosecution that the cheque Ex.P-7 was issued by P.W.7, part-time Agent of the Insurance Corporation as requested by A1, who was Manager of the United India Insurance Corporation Limited, Museum Road Branch, Bangalore. It is also the case of the prosecution that for the cheque issued by P.W.7 for a sum of Rs.120/-, the receipt was issued under Ex.P-6 dated 20.1.1989. Much reliance is also placed upon the investigation report Ex.P-12 dated 14.12.1990 of T.V.Nagarajan (P.W.2), Assistant Manager (Vigilance), BRO and also the investigation report Ex.P-8 dated 23.8.1990 of P.Vijayan (P.W.1), Assistant Administrative Officer of United India Insurance Co. Ltd., Regional Office, 25 M.G.Road, Bangalore. In both the investigation reports Exs.P-12 and P-8, it is stated that TP Policy Ex.P-5 was issued for the Ambassador Car bearing registration No.TMO 2790 in the name and address of A2 at Madras for the period from 16.1.1989 to 15.1.1990. Since the date of signature of proposal is mentioned as 20.1.1989 in the policy, the premium was only received on 20.1.1989 and made relevant entry in the motor premium register only on 20.1.1989 and there is no entry for the receipt of the cheque Ex.P-7 in the Inward Register Ex.P-1 from 5.1.1989 to 25.1.1989 and it revealed that the grant of policy for the coverage from 16.1.1989 to 15.1.1990 was made deliberately only after the accident that took place on 18.1.1989, by putting ante-date by A1.
21. Further, the case of prosecution is that though the claim petition M.C.O.P.No.1640 of 1989 on the file of the Motor Accidents Claims Tribunal, Chennai, filed by P.W.11, was dismissed on 19.1.1994 as per the order under Ex.D-11, the Claims Tribunal recorded finding that A2, the owner of the Ambassador car bearing registration No.TMO 2790, has valid policy under Ex.P-5 dated 16.1.1989 and as such, the United India Insurance Corporation is liable to pay the compensation to the owner of the Mercedez Benz Car bearing registration No.TCV 2752, viz., P.W.11, who filed the said claim petition. The Claims Tribunal also recorded finding that already P.W.11, the owner of the Mercedez Benz Car bearing registration No.TCV 2752 received the amount towards the damage caused to the said Benz car from the insurance company with which the said Benz car was insured and that no satisfactory evidence was let in by P.W.11 in that petition in respect of the other damages towards painting, etc.
22. Admittedly, A1 was the Manager of United India Insurance Corporation Limited, Museum Road Branch, Bangalore, and as such, A1 is a public servant. Therefore, it is to be seen as to whether in such capacity as public servant, A1, who, it is alleged, is a relative of A3 to A5 arranged for the issuance of insurance policy Ex.P-5 through his branch at Bangalore in favour of A2, who is the owner of the Ambassador car bearing registration No.TMO 2790. It is further alleged that the Ambassador car was in the possession of A3 by way of security in respect of the loan availed by A2 from A3 and was used by A5, daughter of A3. A5 caused road accident on 18.1.1989 causing damage to the Mercedez Benz Car bearing registration No.TCV 2752 owned by P.W.11, who filed M.C.O.P.No.1640 of 1989 claiming compensation.
23. It is denied by A2 that he was the owner of the Ambassador Car bearing registration No.TMO 2790 on the date of accident that took place on 18.1.1989, that he sold the same to one Mehta and he also misplaced the R.C. Book and on the basis of the complaint, F.I.R. was also registered and the case was closed as undetected and the R.C. Book was not traceable. There is nothing to show that A2 sold the Ambassador car as alleged by him.
24. The very fact that Ex.P-5 policy was taken in the name of A2 clinches the issue that A2 was the owner of the ambassador car bearing registration No.TMO 2790 at the time of accident that took place on 18.1.1989 and that he handed over the Ambassador car to A3 for the loan availed by him from A3. The policy Ex.P-5 dated 20.1.1989 was issued in favour of A2 for which the cheque Ex.P-7 was issued by P.W.7, who is a part-time Agent. According to P.W.7, as instructed by the Branch Manager, A1, he gave the cheque Ex.P-7, but he returned the said amount by way of cheque which was given to him for payment of road tax by A1. Such a case is unacceptable.
25. The insurance policy Ex.P-5 was issued for the period from 16.1.1989 to 15.1.1990 so as to cover the compensation claim in respect of the accident that took place on 18.1.1989, though policy amount for the premium was paid only on 20.1.1989 as per the cheque issued by P.W.7. It is in evidence that at the instance of the Branch Manager/A1, the policy Ex.P-5 was issued as such, which is quite acceptable. The very fact that Ex.P-5 was issued in favour of A2 in respect of the Ambassador car bearing registration No.TMO 2790, which was plying during relevant time in Madras, by the United India Insurance Corporation, Bangalore, to which A1 was manager, suggest that it was the policy issued only as instructed by A1 as per the conspiracy entered into between him and A2 to A5 and to cheat the United India Insurance Corporation and to meet out the compensation claimed in respect of the accident that took place on 18.1.1989.
26. No doubt that complaint was not preferred by the United India Insurance Corporation and F.I.R. Ex.P-28 was registered by P.W.12 under the instruction of Superintendent of Police, who after registering the case took up the investigation and after completing investigation filed charge sheet against all the accused which is improper. It is well settled that the complainant, who is a police officer cannot take up investigation by himself.
27. As per investigation report Ex.P-8, TP policy was issued for the Ambassador car bearing registering No.TMO 2790 in the name and address of A2 at Madras from 16.1.1989 to 15.9.1990 and since the date of signature of proposal is mentioned as 20.1.1989 in the policy, the premium was only received on 20.1.1989 and relevant entry was also made in the motor premium register only on 20.1.11989 and there is no entry for the receipt of the cheque Ex.P-7 in the Inward Register Ex.P-1 from 5.1.1989 to 25.1.1989 and it reveals that the grant of policy for the coverage from 16.1.1989 to 15.1.1990 was made deliberately only after the accident that took place on 18.1.1989 by ante-dating the same by A1. A1 gave statement to P.W.2 that it was the practice to issue policy covering the earlier period and from the date of the issuance of the cheque, but such a case is not acceptable.
28. Similarly, it cannot be said that no monetary loss caused to the United India Insurance Corporation in view of the fact, the claim petition M.C.O.P.No.1640 of 1989 filed by P.W.11, the owner of the Mercedez Benz car bearing registration No.TCV 2752, to which damage was caused by A5 by driving the Ambassador car bearing registration No.TMO 2790 owned by A2, was dismissed after contest that P.W.11 received the amount towards damage caused to the Mercedez Benz car bearing registration No.2752 from the insurance company with which it was insured, in view of the fact the United India Insurance Corporation entered appearance in the claim petition and contested the same by filing counter, for which necessary amount was spent by way of litigation expenses.
29. As rightly argued by the learned Special Public Prosecutor for CBI Cases, the offence under Section 13(1)(d) of the Prevention of Corruption Act is made out against all the accused, inasmuch as A1 with the conspiracy entered into A2 to A5 and being the relative of A3 to A5 by adopting illegal means, obtained insurance policy Ex.P-5 being valuable thing and to meet out the liability in respect of the compensation claimed by the owner of the Mercedez Benz car bearing registration No.TCV 2752 and in this regard satisfactory evidence has been let in. There is very much force in the argument advanced by the learned Special Public Prosecutor that A1 Manager of the Insurance Company removed the docket sheet, relating to the policy of the said ambassador car and as such, he is also punishable under Section 201 IPC.
30. The trial Court failed to consider all these aspects in proper perspective in recording perverse finding and acquitting the accused which is necessarily to be interfered with. Therefore, the finding of the trial Court acquitting the accused is set aside.
31. The offences are related to the year 1989 for which case was registered in regular Case No.10/A/91 on 28.2.1991 by P.W.12, the Inspector of Police on instruction by the Superintendent of Police and the case ended in acquittal after trial in C.C.No.182 of 1993 by the V Additional Special Judge, Chennai, as per judgment dated 5.2.1997. Further, it appears no wrongful loss caused to the United India Insurance Corporation in view of the fact that M.C.O.P.No.1640 of 1989 claiming compensation filed by P.W.11, the owner of the Mercedez Benz Car to which damage was caused by the Ambassador car driven by A5, was dismissed.
32. In State by Food Inspector v. Kumaresan (1992 L.W. (Crl.) 392), this Court has held as follows:
The question that now looms large is as to whether the verdict of acquittal, which remained for quite a long period, could be disturbed by the reversal of the finding of learned trial Magistrate, as stated above. Taking into account the fact that the respondent/accused had been facing the mental agony of the Damocles’ Sword of prosecution hovering over his head, right from the day of taking of the samples, till upto the time of rendering of the verdict of acquittal and again from the time of subsequent proceeding by way of appeal against acquittal till today, I feel it would not besides justice in not disturbing the verdict of acquittal, despite the fact that the finding of the trial Magistrate, on which the verdict of acquittal is based is set aside. I, therefore, allow the verdict of acquittal to remain as it is, without being disturbed, in the peculiar circumstances of the case.
and in State by Public Prosecutor v. Palani (1997-2-L.W. (Crl.) 782), this Court has held as under:
The acquittal of the respondent / accused is not sustainable in law, and therefore, the same is liable to be set aside. Except pointing out the illegality committed by the Court below in acquitting the accused, the respondent/accused is not sentenced in any manner, in the appeal in view of the long lapse of time. The appeal is disposed of accordingly.
33. In the result, following the judgments of this Court rendered in State by food Inspector v. Kumaresan (1992 Law Weekly (Crl.) 392) and State by Public Prosecutor v. Palani (1997-2-Law Weekly (Crl.) 782) (cited supra) and considering the facts that the offences are related to the year 1989 for which case was registered in regular Case No.10/A/91 on 28.2.1991 by P.W.12, the Inspector of Police on instruction by the Superintendent of Police and the case ended in acquittal as per judgment dated 5.2.1997 and also the facts that nearly 15 years have elapsed and the mental agony suffered by the respondents/accused, this Court is of the view that the acquittal of the accused need not be disturbed. Accordingly, this appeal is disposed of.
