{"id":122041,"date":"2010-07-19T00:00:00","date_gmt":"2010-07-18T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ramachandran-vs-state-of-kerala-on-19-july-2010"},"modified":"2018-10-16T15:18:25","modified_gmt":"2018-10-16T09:48:25","slug":"ramachandran-vs-state-of-kerala-on-19-july-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ramachandran-vs-state-of-kerala-on-19-july-2010","title":{"rendered":"Ramachandran vs State Of Kerala on 19 July, 2010"},"content":{"rendered":"
Kerala High Court<\/div>\n
Ramachandran vs State Of Kerala on 19 July, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCrl.Rev.Pet.No. 90 of 2002()\n\n\n1. RAMACHANDRAN,AGED 46 YEARS,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. STATE OF KERALA,REPRESENTED BY\n                       ...       Respondent\n\n                For Petitioner  :SRI.T.K.PANKAJASHAN PILLAI\n\n                For Respondent  :PUBLIC PROSECUTOR\n\nThe Hon'ble MR. Justice M.SASIDHARAN NAMBIAR\n\n Dated :19\/07\/2010\n\n O R D E R\n          M.SASIDHARAN NAMBIAR,J.\n\n           ---------------------------------------------\n               CRL.R.P.NO.90 OF 2002\n           ---------------------------------------------\n               Dated 19th July, 2010\n\n\n                          O R D E R\n<\/pre>\n
             Petitioner               was        convicted   and<\/p>\n
sentenced for the offences under Section<\/p>\n
420  and  468       of       Indian           Penal      Code by<\/p>\n
Judicial First Class Magistrate-II, Kochi<\/p>\n
in C.C.614\/1995. Petitioner challenged the<\/p>\n
conviction and sentence before the Sessions<\/p>\n
court, Ernakulam in Crl.A.31\/1999. Learned<\/p>\n
Additional      Sessions                 Judge           on  re-<\/p>\n
appreciation     of        evidence              confirmed   the<\/p>\n
conviction and sentence and dismissed the<\/p>\n
appeal. It is challenged in the appeal.<\/p>\n
       2. PW1, Manager of Kochi Branch of<\/p>\n
State Bank of India filed Ext.P1 complaint<\/p>\n
before    Sub           Inspector                  of     Police,<\/p>\n
Mattancherry, based on which Ext.P22 FIR<\/p>\n
CRRP 90\/02
\n                        2<\/span><\/p>\n
was    registered.  Under  Ext.P22  FIR,  crime<\/p>\n
No.13\/1995   was  registered  against the  five<\/p>\n
accused stated in Ext.P1 for the offences under<\/p>\n
Sections 468 and 420 of Indian Penal Code read<\/p>\n
with Section 34 of Indian Penal Code. PW6, the<\/p>\n
investigating     Officer,    based   on     the<\/p>\n
investigation submitted a report deleting the<\/p>\n
other four accused, except the petitioner from<\/p>\n
the   array  of  accused and  also  deleted  the<\/p>\n
offence under Section 34 of Indian Penal Code.<\/p>\n
After completing the investigation, charge was<\/p>\n
laid against the petitioner which was taken<\/p>\n
cognizance     by   the   learned    Magistrate.<\/p>\n
Petitioner   pleaded  not   guilty.  Prosecution<\/p>\n
examined six witnesses and marked 22 exhibits.<\/p>\n
On the side of the petitioner, Ext.D1 copies of<\/p>\n
lorry receipts were marked and DW1, his brother<\/p>\n
was examined.    Based on the evidence  learned<\/p>\n
CRRP 90\/02
\n                         3<\/span><\/p>\n
Magistrate    found  the  petitioner  guilty  and<\/p>\n
convicted     and sentenced him for     both the<\/p>\n
offences.    Learned   Sessions  Judge   on   re-<\/p>\n
appreciation    of  the evidence,  confirmed  the<\/p>\n
conviction.    Learned  counsel appearing for the<\/p>\n
petitioner would contend that there is no legal<\/p>\n
evidence    to  convict the  petitioner  and  the<\/p>\n
trial court and the appellate court did not<\/p>\n
appreciate     the   evidence   in   the   proper<\/p>\n
perspective and therefore, the conviction is<\/p>\n
not sustainable. Learned counsel would argue<\/p>\n
that appreciation of evidence was perverse and<\/p>\n
Ext.P18 letter was relied on by the courts<\/p>\n
below    without  legal proof.  So  also  Ext.P19<\/p>\n
which is only a photocopy of a statement was<\/p>\n
relied on as if, it is the      statement of the<\/p>\n
petitioner admitting the offence and therefore,<\/p>\n
the conviction is illegal.\n<\/p>\n
CRRP 90\/02
\n                        4<\/span><\/p>\n
          3.   Learned Public Prosecutor  argued<\/p>\n
that evidence of Pws.1 and 2 establish that no<\/p>\n
consignment was sent and though Exts.P5, P9 and<\/p>\n
P13 bills were produced before the Bank for<\/p>\n
discounting, along with Exts.P6, P10 and P14<\/p>\n
lorry     receipts and  Exts.P8,   P12  and  P16<\/p>\n
insurance certificates. It is pointed out that<\/p>\n
evidence of PW2 establishes that he had gone to<\/p>\n
Bilaspur and Delhi and    found that there is no<\/p>\n
Rishi Agencies, who allegedly issued Exts.P5,<\/p>\n
P9 and P13 bills and Ext.P18 show that Savitha<\/p>\n
Roadlines who allegedly issued Exts.P6, P10 and<\/p>\n
P14 lorry receipts were not    functioning after<\/p>\n
1986 and those receipts are not genuine and in<\/p>\n
such    circumstances, the  conviction  perfectly<\/p>\n
legal.\n<\/p>\n
          4. Prosecution case is that petitioner<\/p>\n
as   Proprietor     of the   proprietary concern<\/p>\n
CRRP 90\/02
\n                          5<\/span><\/p>\n
M\/s.Chandra     Enterprises applied  for     cash<\/p>\n
credit facility which was originally granted<\/p>\n
for Rupees Two Lakhs and thereafter      enhanced<\/p>\n
to Rupees Three Lakhs and then to Rupees Five<\/p>\n
lakhs       and  finally  on his  application in<\/p>\n
December 1991, the facility was      extended to<\/p>\n
Rupees Twelve Lakh and petitioner thereafter<\/p>\n
produced four bills for discounting to a     tune<\/p>\n
of Rs.9.19 Lakhs and those bills were paid    and<\/p>\n
later on 31\/12\/1991 another bill for Rs.2.1<\/p>\n
Lakh    was  again  discounted by  the  bank  and<\/p>\n
proceeds were credited to the account of the<\/p>\n
petitioner and that bill was drawn by NamChandh<\/p>\n
Vijayakumar     of Delhi. On  30\/1\/1992 two bills<\/p>\n
each for Rs.2,77,500\/- were produced and      and<\/p>\n
those     bills  were  also issued  by  the  same<\/p>\n
Namchand      Vijayakumar  and   the   supporting<\/p>\n
invoice, lorry receipts and transit insurance<\/p>\n
CRRP 90\/02
\n                       6<\/span><\/p>\n
certificates were produced and when those bills<\/p>\n
were forwarded, they were returned as not paid<\/p>\n
and petitioner was asked to pay the amount and<\/p>\n
then petitioner represented that he had other<\/p>\n
orders and brought Exts.P5, P9 and P13 bills<\/p>\n
for aggregate of Rs.7.51 Lakhs and believing<\/p>\n
the representation that they are genuine, they<\/p>\n
were allowed to  be discounted and those bills<\/p>\n
were sent for collection. But under Ext.P17<\/p>\n
they were returned with the  endorsement, bills<\/p>\n
were not paid. According to Ext.P1 complaint,<\/p>\n
PW2 Manager was deputed to   conduct an enquiry<\/p>\n
and he went to Delhi and Bilaspur and found<\/p>\n
that there is no Rishi Agencies and the goods<\/p>\n
consigned were not at Delhi or Bilaspur as<\/p>\n
shown in Exts.P4, P10 and P14 lorry receipts.<\/p>\n
Therefore, Bank got convinced that they are<\/p>\n
forged receipts and bills. Ext.P1 complaint was<\/p>\n
CRRP 90\/02
\n                         7<\/span><\/p>\n
then    filed.\n<\/p>\n
          5. Final   report   submitted  by   the<\/p>\n
investigating officer does not disclose that<\/p>\n
apart from the enquiry conducted by PW2, the<\/p>\n
Investigating       Officer     conducted     any<\/p>\n
investigation worth the name.\n<\/p>\n
          6.    Learned  Magistrate  and  learned<\/p>\n
Sessions Judge relied on Ext.P18 to find that<\/p>\n
Savitha Roadlines who issued Exts.P6, P10 and<\/p>\n
P14   were   not functioning  in  July  1992  and<\/p>\n
therefore, they are forged receipts.      Learned<\/p>\n
Magistrate    and  learned  Sessions  Judge  also<\/p>\n
relied on Ext.P19,    which is   only a photocopy<\/p>\n
of a letter\/statement allegedly given by the<\/p>\n
petitioner. Question is whether Exts.P17 and<\/p>\n
P18 could have been relied on by the courts<\/p>\n
below without proper proof.\n<\/p>\n
          7. Ext.P1  complaint  shows  that when<\/p>\n
CRRP 90\/02
\n                          8<\/span><\/p>\n
Exts.P5, P9 and P13 bills were returned without<\/p>\n
payment, the Manager of the bank addressed the<\/p>\n
Head Office of Savitha Roadlines, with copy of<\/p>\n
Exts.P6, P10 and P14 lorry receipts to find out<\/p>\n
whether they are genuine, Ext.P18 is the reply<\/p>\n
received thereafter. It is dated 5\/3\/1993 and<\/p>\n
addressed to Assistant General Manager, State<\/p>\n
Bank of India, Kochi. True,     Ext.P18 shows that<\/p>\n
Savitha Roadlines was not       functioning after<\/p>\n
April 1986 and the receipts being issued by<\/p>\n
Savitha Roadlines is    not like Exts.P6, P10 and<\/p>\n
P14 receipts produced by     the petitioner before<\/p>\n
the bank. Question is whether Ext.P18 letter is<\/p>\n
proved.     Though  PW1  was  examined,  even  the<\/p>\n
letter sent by the bank, for which Ext.P18<\/p>\n
reply     was  sent,  was  not  produced.  Ext.P18<\/p>\n
letter is seen signed for     Savitha Roadlines by<\/p>\n
its manager, though his name is not shown. PW6,<\/p>\n
CRRP 90\/02
\n                         9<\/span><\/p>\n
Investigating    Officer  had  not   investigated<\/p>\n
about Ext.P18 much less, the correctness of the<\/p>\n
statement therein. At the same time, when DW1<\/p>\n
was cross examined, what was suggested to DW1<\/p>\n
was    only  that   Savitha  Roadlines  was   not<\/p>\n
functioning after 1991. Ext.P18    could not have<\/p>\n
been relied on by the courts below, without<\/p>\n
proof    of  the document.  As  the  manager  who<\/p>\n
issued Ext.P18 or any other official of Savitha<\/p>\n
Roadlines    was  examined,  Ext.P18  stands  not<\/p>\n
proved. Therefore, no reliance could be placed<\/p>\n
on Ext.P18.\n<\/p>\n
          8. Ext.P19 was produced, at the time of<\/p>\n
evidence,    as a   photocopy  of  the  statement<\/p>\n
furnished by the petitioner. Photocopy cannot<\/p>\n
be      admitted as  secondary  evidence  without<\/p>\n
establishing    that  primary  evidence  is   not<\/p>\n
available.    Evidence  of  PW1     through  whom<\/p>\n
CRRP 90\/02
\n                        10<\/span><\/p>\n
Ext.P19    was  marked,  show that  original   of<\/p>\n
Ext.P19 is available with the bank at Chennai.<\/p>\n
Without     producing   the  original,    Ext.P19<\/p>\n
photocopy cannot be admitted in evidence and<\/p>\n
cannot be relied on. Therefore, Ext.P19      also<\/p>\n
could not have been relied on by the courts<\/p>\n
below.\n<\/p>\n
          9. What remains is only the evidence of<\/p>\n
Pws.1 and 2 and PW6. Pws.3 and 4 are only<\/p>\n
witnesses to Ext.P20 mahazar. PW5 is the Joint<\/p>\n
Director of Kerala Forensic Science Laboratory,<\/p>\n
who furnished Ext.P21 report on examination of<\/p>\n
the documents sent to him. Ext.P21 with the<\/p>\n
evidence of PW5 only establish that signature<\/p>\n
found as that of the proprietor in Exts.P5, P9<\/p>\n
and P13 bills as well as the lorry receipts and<\/p>\n
the   insurance  certificates  are  that  of  the<\/p>\n
petitioner    Even   without the evidence of the<\/p>\n
CRRP 90\/02
\n                         11<\/span><\/p>\n
expert, those signatures are admitted. Those<\/p>\n
signatures     are   the    signatures  of    the<\/p>\n
petitioner, capacity as the proprietor of the<\/p>\n
proprietary    concern.  Therefore,  evidence of<\/p>\n
Pws.5 and     Ext.P21 also does not establish the<\/p>\n
offences alleged against the petitioner.<\/p>\n
          10. Evidence of PW2 was acted upon by<\/p>\n
the courts below to hold that there was no<\/p>\n
Rishi Agencies who issued Exts.P5, P9 and P13<\/p>\n
bills. Oral evidence of PW2 is insufficient to<\/p>\n
establish that there was no Rishi Agencies or<\/p>\n
that there was no office for Savitha Roadlines<\/p>\n
at New Delhi or Bilaspur. Though PW2 deposed<\/p>\n
that he has submitted report, the report was<\/p>\n
not seen marked, though in fact, the report is<\/p>\n
seen     among  the   records  produced  by   the<\/p>\n
prosecution. But no attempt was made to prove<\/p>\n
that report. PW6, who should have investigated<\/p>\n
CRRP 90\/02
\n                       12<\/span><\/p>\n
on these aspects including the question whether<\/p>\n
Rishi    Agencies is   functioning  or  not and<\/p>\n
Savitha Roadlines was defunct or was having<\/p>\n
office at Delhi or Bilaspur did not conduct any<\/p>\n
investigation. PW1 has no personal knowledge on<\/p>\n
these    aspects. His evidence  only  show that<\/p>\n
Exts.P5, P9 and P13 bills were produced along<\/p>\n
with the supporting lorry receipts and invoices<\/p>\n
and insurance certificates. He did not verify<\/p>\n
whether those receipts were genuine and whether<\/p>\n
goods were sent as    seen in Exts.P6, P10 and<\/p>\n
P14. Even though PW1 alleged that Exts.P8, P12<\/p>\n
and P16 insurance certificates are also forged,<\/p>\n
PW6 did not conduct any investigation on that<\/p>\n
aspect. None of the officers of the Insurance<\/p>\n
company    who  issued Exts.P8,  P12   and  P16<\/p>\n
certificates were examined. Therefore, there is<\/p>\n
no legal evidence to prove that Rishi Agencies<\/p>\n
CRRP 90\/02
\n                        13<\/span><\/p>\n
who issued Exts.P5, P9 and P13 receipts is not<\/p>\n
in existence or the receipts are not genuine or<\/p>\n
that they did not issue Exts.P5, P9 and P13.<\/p>\n
There is also no legal evidence to prove that<\/p>\n
Savitha Roadlines who issued Exts.P6, P10 and<\/p>\n
P14 was not functioning during 30\/7\/1992 or<\/p>\n
that    those lorry receipts  are forged  lorry<\/p>\n
receipts. Similarly, there is no evidence to<\/p>\n
prove that lorry receipts were issued without<\/p>\n
the    supporting  goods  sent  thereunder.  As<\/p>\n
pointed out by the learned  counsel   appearing<\/p>\n
for the petitioner, it cannot be presumed that<\/p>\n
Exts.P8,    P12  and P16  which  are  insurance<\/p>\n
certificates, issued by Nationalized Insurance<\/p>\n
Company are not genuine or that there was no<\/p>\n
such articles which were insured as shown in<\/p>\n
the certificates. The insurance company  should<\/p>\n
have verified the goods and then   only insured<\/p>\n
CRRP 90\/02
\n                         14<\/span><\/p>\n
them and issued the certificates. There is no<\/p>\n
evidence to show that insurance certificates<\/p>\n
were not issued in accordance with the rules.<\/p>\n
In such circumstances, it can only be found<\/p>\n
that      prosecution   did  not    succeed  in<\/p>\n
establishing that Exts.P5, P9 and P13 bills,<\/p>\n
Exts.P6, P10 and P14 lorry receipts, Exts.P8,<\/p>\n
P12   and   P16  insurance certificates and the<\/p>\n
invoices were forged. Therefore, conviction for<\/p>\n
the offence under Section 468 of Indian Penal<\/p>\n
Code is unsustainable. Similar is the case with<\/p>\n
the conviction for the offence under Section<\/p>\n
420 of Indian Penal Code. When there is no<\/p>\n
evidence to prove that Exts.P6, P10 and P14<\/p>\n
lorry receipts or Exts.P5, P9 and P13 bills<\/p>\n
were forged or that petitioner induced the Bank<\/p>\n
to part with money, it can only be held that<\/p>\n
prosecution did not establish that petitioner<\/p>\n
CRRP 90\/02
\n                         15<\/span><\/p>\n
cheated    the  bank  by  inducing  the  bank to<\/p>\n
discount the bills without     sending the goods<\/p>\n
as  shown    in  the respective  lorry  receipts.<\/p>\n
Hence conviction for the offence under Section<\/p>\n
420   of   Indian   Penal  Code    is  also  not<\/p>\n
sustainable.\n<\/p>\n
          Revision is  allowed. Conviction of the<\/p>\n
petitioner for the offence under Sections 468<\/p>\n
and 420 of Indian Penal Code is set aside.<\/p>\n
Petitioner is found not guilty of the offences.<\/p>\n
He is acquitted. The bail bond executed by him<\/p>\n
stands cancelled.\n<\/p>\n<\/p>\n
                            M.SASIDHARAN NAMBIAR,
\n                                       JUDGE.\n<\/p>\n
\nuj.<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Ramachandran vs State Of Kerala on 19 July, 2010 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-122041","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nRamachandran vs State Of Kerala on 19 July, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ramachandran-vs-state-of-kerala-on-19-july-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ramachandran vs State Of Kerala on 19 July, 2010 - 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